Charges and Penalties

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Description: This session provides a comprehensive look at framing or crafting charges; the specific charges typically brought by agencies and their elements of proof; considerations in taking, supporting and defending against penalty determinations; and, frequent mistakes made in framing charges and in making penalty decisions.

Length: 2 days

(Note from Sam: This could be part of VG and G but I may need to teach this with Renn if 2 instructors are needed)

Table of Contents

I. Introduction
II. The Charges

A. Charge Framing

1. The Basics

2. Charge Framing Snafus: 11 Deadly Sins

B. Recent Developments in Charge Framing

1. The Focus on Notice

A Less Legalistic Analysis: Approval of
General-Label Charges
3. The Risk in General-Label Charges
4. Continued Loosening
5. Allowing Flexibility in Structuring Charges
6. But Still Scrutinizing the Wording of the Charge
7. Endorsing Alternatives to Intent Charges
8. Merger

9. Having it Both Ways: A Reduced Charge
Burden with More Bang in Penalty?
C. Proof of Charges

1. Insubordination and Failure to Follow Orders

2. Falsification

3. Physical or Mental Inability to Perform

4. Willful Vehicle Misuse

5. Threats

6. Attendance Related Offenses

7. Failure to Cooperate in an Agency Investigation

8. Theft / Conversion

Sex Harassment

10. Unauthorized Use of Government Property
or Conversion

11. Conviction-related Offenses

12. Performance / Chapter 75 Charges

13. Indefinite Suspensions

14. Disrespectful Conduct Charges

III. Nexus

IV. Penalty

A. Recent Developments in Penalty Law and Determinations

1. Deference

2. The Due Process problem

The Deciding Official’s Involvement

4. The emergence of Douglas Factor

5. The scapegoat problem

6. The focus on the content of the agency proposal

7. Misconduct during the administrative process as an aggravating factor

8. Selling the penalty / emphasizing the harm
to the agency and employees

9. Stricter application of Douglas factors

De minimis as a mitigating factor even
if custody and control

11. Trust and confidence determination
rests primarily with agency

12. Illustrative cases in which penalty mitigated

13. Illustrative cases in which penalty upheld

B. Penalty mistakes made by agencies
V. Affirmative Defenses

A. A Closer Look at the Affirmative Defenses:

1. Harmful Procedural Error

2. Prohibited Personnel Practices

3. Not in Accordance with law

Appendix A: Charging Exercises

Appendix B: Case Summaries