Ask The Lawyer

By Debra Roth

Speaking Publicly

Bookmark and Share

Federal employees who have challenged adverse job actions on First Amendment grounds regularly fail. Why is that, and could a case now pending before the U.S. Supreme Court be a game-changer?

Thirty years ago, the Supreme Court recognized that public employees, like all citizens, enjoy a constitutionally protected interest in freedom of speech. However, according to the court, public employee free speech rights must be balanced against the need of government agencies to exercise “wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment.”

For employees who faced a job action because of something they said, the Merit Systems Protection Board applied Supreme Court First Amendment law to determine whether a public employee’s speech is protected by the First Amendment. That test has always been to balance the interests of the employee, acting as a private citizen, in commenting on matters of public concern, against the interests of the federal government, as an employer, in promoting the efficiency of the public services it performs through its employees. Thus, the MSPB will determine: 1) whether the speech was made as a private citizen; 2) whether the speech addressed a matter of public concern, and, if so, 3) whether the agency’s interests in promoting the efficiency of the service outweighs the employee’s interest as a citizen.

In sum, speech (in a blog, on your Twitter account, on your Facebook page, in an op-ed), is protected by the First Amendment, and thus cannot be the subject of discipline if you were speaking as a private citizen (not in your official capacity) and on a matter of public concern. When you speak out with the indicia of your official capacity on a matter of public concern, your speech can be regulated by your federal employer, including discipline. The rationale is found in the Supreme Court case, Garcetti v. Ceballos, 547 U.S. 410 (2006):

“When public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline…Restricting speech that owes its existence to a public employee’s professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen. It simply reflects the exercise of employer control over what the employer itself has commissioned or created.”

A few weeks ago, the Supreme Court heard arguments on a public employee case that raises questions about whether some speech made in your official capacity is protected. The case was brought be a Central Alabama Community College (“CACC”) employee who became the director of a program for at-risk youth. He discovered that an Alabama state representative was on the program’s payroll, despite never having provided any work or services for the program. When the employee notified the CACC president about his concerns, he was warned by the president and CACC’s attorney that putting an end to the state representative’s “employment” would not be wise for either CACC, or for the employee. The employee ignored this warning and terminated the Alabama state representative when she refused to report to work.

The employee, while still employed, was later subpoenaed for his testimony in two federal criminal trials for mail fraud and fraud involving a program receiving public funds. The employee testified that the state representative had not reported to work, had not submitted time sheets, and had refused to report to work when instructed to do so.

Subsequently, the CACC president of the CACC fired the employee who terminated the state representative. The employee then filed suit in federal district court, claiming that his firing was retaliation for his testimony regarding the state representative. The court of appeals ruled for the public employer, finding that an employee does not enjoy First Amendment protection when the speech was made pursuant to his official duties, i.e., his subpoenaed testimony.

The issue before the Supreme Court was whether a public employer is categorically liberated under the First Amendment to retaliate against an employee for truthful testimony that was compelled by subpoena. The fact that his testimony was presumably truthful has thus far offered him no relief.

Most federal employees who defended against an adverse action alleging a violation of the First Amendment lost because the speech at issue, made as a private citizen, did not involve a public concern. The MSPB has long held that employee speech that lacks a public dimension and is seen as subversive to good order, efficiency or discipline in the workplace, is more likely to be unprotected speech. But with the case now before the Supreme Court, it looks as if some official capacity speech may become protected under the First Amendment. To what extent, will be revealed when the Court rules by June 30th.

 

Debra L. Roth is a partner at the law firm Shaw Bransford & Roth in Washington. She is general counsel to the Senior Executives Association and the Federal Managers Association, host of the “FEDtalk” program on Federal News Radio, and a regular contributor to Federal News Radio’s “Federal Drive” morning show. Email your legal questions to lawyer@federal times.com and view her blog at blogs.federaltimes.com/ federal-law.

Q & A Session: Correcting Substandard Work

Bookmark and Share

Q:

Can it be considered a form of abuse or injury when correcting an employee’s substandard work results in carpal tunnel syndrome pain?

A:

While it seems as if your subordinate employee is indeed creating unusual work conditions for you, a complaint of abuse or injury based on the inferior work product of a subordinate isn’t feasible. However, if your carpal tunnel becomes too debilitating, you may be eligible for reasonable accommodations from the agency which will allow you to work and remain healthy. You also may be eligible for workers’ compensation if your carpal tunnel syndrome is aggravated by your work duties. I can’t advise you on the best way forward professionally with the employee who is producing reams of bad copy, but it might be wise to take advantage of any available feedback, counseling, or performance review process available.

This response is written by Conor D. Dirks, associate attorney of Shaw Bransford & Roth P.C., a federal employment law firm.

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: What are my options for a discontinued service retirement?

Bookmark and Share

Q:

I am an Air Force reservist and a full-time federal employee.  I am facing a military medical board which I think will determine I am no longer medically able to participate in the reserves.  I am 47 years old.  I have given 28 years of reserve service and 16 years of civil service.  I am not sure what my options are to pursue a discontinued service retirement since I am under age 50.  What are my options for a discontinued service retirement?  Can I request an age wager?

A:

While you may no longer be medically suitable for military service, that does not mean you are also unfit for federal civil service; many conditions which would make an individual unable to serve in the military do not preclude civil service.  I suspect you may not have to retire at all.

If you wish to seek a discontinued service retirement, you must either (a) be age 50 or over, with 20 years of creditable service, or (b) have at least 25 years of service at any age.  Your lengthy reserve career likely had several period of active duty, might add several years of “creditable federal service.”  I am not aware of a waiver to these requirements.  However, that may be a moot point, because you must also be involuntarily separated from federal service to qualify for a discontinued service retirement, and it does not sound as though you are being involuntarily separated from your civil servant position.

If you are medically unable to continue in your current position, you could apply for a disability retirement, request a transfer to another position you could perform as an accommodation, or request an accommodation which allows you to perform your current duties.

This response is written by Michael S. Causey, associate attorney of Shaw Bransford & Roth P.C., a federal employment law firm.

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: Finance Management & Security Clearances

Bookmark and Share

Q:

Can my finance management affect my security clearance?

A:

One of the Adjudicative Guidelines for Determining Eligibility for Access to Classified Information, Guideline F, is based on financial considerations. A short sale can have a negative impact on your FICO score. Thus, a short sale could be a factor in a security clearance adjudication, but does not necessarily mean you will lose your clearance. It depends on other factors, including a pattern of financial irresponsibility and avoidance of financial responsibilities. You should seek advice from an attorney and your security officer.

This response is written by Maria N. Coleman, associate attorney of Shaw Bransford & Roth P.C., a federal employment law firm.

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: Suspected Retaliation for EEO Complaint

Bookmark and Share

Q:

I feel like I’m being retaliated against for my EEO complaint. What are my rights?

A:

When a federal employee is retaliated against by his or her supervisor for filing an EEO claim, for otherwise participating in the EEO process, or for opposing discrimination, they may have a right to file a complaint and utilize the EEO process in order to investigate, and possibly remedy, the harms suffered via a supervisor’s retaliatory acts. Although trivial annoyances are not actionable, retaliatory treatment that is reasonably likely to deter protected activity is unlawful. A federal employee has 45 days from the date of the retaliatory action to contact an EEO counselor.

This response is written by Conor D. Dirks, associate attorney of Shaw Bransford & Roth P.C., a federal employment law firm.

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: Favoritism Suspected of Affecting Bonus Distribution

Bookmark and Share

Q:

Our supervisor has two family members working in our office, at least one of whom she helped to get a job here.  Last year, the three of them received nearly $5,000 in awards which is a very large percentage of our office’s award budget.  What should I do?

A:

It seems like your supervisor and her family members received a large portion of the available award money in your office.  This does not necessarily mean there is misconduct – I do not know how many employees are in your office, who decided how to distribute the award money, or whether those three employees were truly excellent performers, among other variables.  Even so, you are familiar with the circumstances surrounding the award money and seem to view the matter as suspicious.  If you do, you could report the fact to your agency’s Office of the Inspector General (“OIG”) for review.  The OIG will decide whether or not to investigate, and if they do, they will issue a report of the factual findings and, if necessary, refer it to management for possible disciplinary action.  I would note that nepotism in the federal workplace is prohibited under 5 U.S.C. § 2302(b)(7).  You can report allegations of nepotism to the Office of Special Counsel (“OSC”), an independent agency, by completing Form OSC-11, which is available on the OSC website.

This response is written by Michael S. Causey, associate attorney of Shaw Bransford & Roth P.C., a federal employment law firm.

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.

Admit the misconduct

Bookmark and Share

Sounds like easy advice, right? When confronted by an agency investigator regarding your conduct, the natural tendency however, is to deflect, divert, downplay or deny. But doing so, almost always, will result in a more severe penalty than if you simply admitted to the conduct — in its truest and most complete form.

Why is that? Because back in 1998, a unanimous U.S. Supreme Court decided that a federal agency may discipline an employee who lies or lacks candor to the agency regarding alleged employment-related misconduct, including falsely denying the offense, such that the agency can discipline the employee not only for the underlying act of misconduct, but also for the lie or lack of candor. It’s the latter (the lie) that almost always results in a more severe penalty than if the employee simply admitted the underlying wrongdoing.

The case is Lachance v. Erickson, 118 S.Ct. 753 (1998). Until the Supreme Court ruled, there was litigation at the Merit Systems Protection Board (MSPB) and its appellate review court, the U.S. Court of Appeals for the Federal Circuit, on the issue of whether a federal employee could be disciplined for making a false denial to investigators of alleged misconduct: “I didn’t do it.”

For many legal observers, there was surprise when the court of appeals held that federal employees could not be disciplined for falsely denying (“I didn’t do it”) an act of misconduct. The issue was so important that the White House’s Office of Personnel and Management exercised its right to appeal that decision to the Supreme Court and obtained a reversal.

While the MSPB and the court of appeals had always held that an employee could be disciplined for making statements to investigators in which he or she provided false facts, that situation was distinguished from the simple false denial of the offense: “I didn’t do it.” With the decision in the Erickson case, it became clear that even when an employee simply, but falsely, states “I didn’t do it,” without stating additional false facts to support the denial, he or she could be disciplined for making a false statement when falsely denying the offense.

And so with the Erickson decision, the culture of the federal workplace went through a sea change. Federal agencies rolled up their sleeves and began charging employees with false statements, lying, or lack of candor whenever there was evidence to support such a charge. And for the most part, employees have been slow to catch up, even though everyone knows that lying will get them in trouble.

Big trouble. In most law enforcement agencies, your first offense of lying or lack of candor in an investigation into your alleged misconduct is a firing offense regardless of your lengthy and impeccable service record. That is because the MSPB and court of appeals have held over and over again that candor to your federal employer is at the heart of the employer-employee relationship, and the honesty and integrity of its employees is essential to attaining the confidence of the citizens that agencies serve.

From years of practicing law defending federal employees under all types of investigations, there is a single explanation for why a person, when confronted by a misdeed, will deflect, divert, downplay or deny — human nature. Just try questioning your third-grade son or daughter on one of their misdeeds, and you’ll see human nature at work.

Unfortunately, the OIG community isn’t that patient in ferreting through our human tendencies, and it takes great offense to attempts to deflect, divert, downplay or deny. That is why I preach that if you know you’ve made a mistake or done something wrong (intentional or unintentional), it is in your interest to be prepared to tell your entire story, with all of its gruesome details, when called into an interview. Not only will it make your interview a lot less painful, you will reduce your exposure to a charge of false statement or lack of candor.

Debra L. Roth is a partner at the law firm Shaw Bransford & Roth in Washington. She is general counsel to the Senior Executives Association and the Federal Managers Association, host of the “FEDtalk” program on Federal News Radio, and a regular contributor to Federal News Radio’s “Federal Drive” morning show. Email your legal questions to lawyer@federal times.com and view her blog at blogs.federaltimes.com/federal-law.

 

Q & A Session: Listing Reason for Discrimination in EEO Claim

Bookmark and Share

Q:

Does a discrimination claim need to list a reason for alleged discrimination?

A:

Yes, an EEO discrimination claim must list a basis for the alleged discrimination in a complaint of discrimination. The laws enforced by the EEOC (such as Title VII of the Civil Rights Act of 1964 (Title VII), Age Discrimination in Employment Act of 1967 (ADEA), Rehabilitation Act of 1973) make it illegal to discriminate against someone on the basis of race, color, religion, national origin, sex, age or disability. It is also illegal to retaliate against a person because the person complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit. Thus, in order to win a claim of discrimination, a complainant must prove the reason for the alleged act of discrimination was because of a protected basis or because of retaliation for a protected activity and not because the alleged discriminating person just does not like the complainant.

This response is written by Maria N. Coleman, associate attorney of Shaw Bransford & Roth P.C., a federal employment law firm.

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: Obtaining a Security Clearance—It’s All in the Details

Bookmark and Share

Q:

I have maintained my security clearance for over 10 years. I was recently hired for a position which required a Top Secret/SCI clearance. About five years ago, I had some back pain while visiting a friend’s home. I was offered a pain reliever and I took it. I found out afterwards that the pain reliever was prescription. This only happened one time. When asked on my SF-86 clearance form if I had ever taken prescription medicine without a prescription, I was unsure of how to answer, so I said no. I disclosed what happened in my interview, though. There are no other issues in question. Do I have a chance to obtain a clearance still?

A:

You do still have a chance to obtain a clearance, but how good that chance is depends on the details. If the facts are as innocuous as you describe, then I do not believe that the one-time inadvertent consumption of the prescription medicine will be an issue. What could be an issue is your inaccurate reply on the SF-86 form. Your failure to provide a truthful and candid answer to that question may result in an unfavorable clearance decision.

Disqualifying conditions may include the deliberate omission, concealment or falsification of relevant facts on the SF-86. An applicant could mitigate security concerns by making a prompt, good faith effort to correct the SF-86 before being confronted with the facts. Therefore, if you were confused or unsure how to respond to the question, and you were immediately candid with the interview, the security concerns may be mitigated and you could be granted a clearance.

This response is written by Michael S. Causey, associate attorney of Shaw Bransford & Roth P.C., a federal employment law firm.

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: Including Prior Acts of Harassment in EEO Complaint Alleging Hostile Work Environment

Bookmark and Share

Q:

Can I include prior acts of harassment in my EEO complaint alleging a hostile work environment?

A:

According to 29 CFR § 1614.105(a)(1), complaints of discrimination should be brought to the attention of the EEO counselor within 45 days of the date of the matter alleged to be discriminatory, or with respect to personnel actions, within 45 days of the action ‘s effective date.

The U.S. Supreme Court has held that an individual alleging a hostile work environment will not be time-barred if all acts constituting the claim are part of the same unlawful practice, and at least one act falls within the filing period.  See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002).  In other words, you may use events that occurred more than forty-five (45) calendar days prior to your initiation of the EEO process to prove your hostile work environment claim, so long as your claim is timely (i.e. the days between the latest discriminatory event and your contact with the EEO office is within a 45 day period).

However, if you prevail on your hostile work environment claim, you are only entitled to legal relief for the specific acts that occurred within forty-five calendar days of your initiation of the EEO process.  For example, if an employee is not selected for a competed promotion in three consecutive years, and then that employee files a timely hostile work environment claim within forty-five (45) calendar days of the third non-selection, the employee may use the first two non-selections to prove his/her hostile work environment claim, but the employee, if he/she prevails, would only be entitled to a legal remedy for the third non-selection which occurred within forty-five calendar days of the date he/she initiated the EEO process.

This response is written by Christopher J. Keeven, associate attorney of Shaw Bransford & Roth PC, a federal employment law firm.

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.