Adverse Actions - Guidance for Deciding Officials

One of your subordinate supervisors has proposed an adverse action against an employee because of some incident of misconduct. You have been designated as the deciding official. As the deciding official your function is to impartially review all the evidence of record, give full and impartial consideration to any reply the employee makes, determine the validity of the proposed action, and make the final decision to take, not take, or reduce the penalty stated in the proposed notice. The following are some important requirements to be familiar with when deciding to take an adverse action.

  1. No decision shall be made until you have given full and impartial consideration to any and all replies and information provided by the employee and/or his/her representative. Keep an open mind and do not make a decision before considering this information, if provided.
  2. The employee has the right to be informed of, and reply to, all the charges against him/her. This information should be clearly stated in the proposal memorandum to the employee.
  3. The employee has a right to review all material relied on for the proposed action; therefore, ensure you only consider the material replied on for the proposed action or provided to you by the employee. If you find out about an aggravating factor after the proposal letter, you can "cure it" by giving the employee another memorandum explaining the new information and providing the employee with an opportunity to respond or you can rescind the proposed notice (memorandum) and issue a new proposed notice.
  4. When receiving the employee's oral reply, you should make notes of the points presented and summarize the contents of the employee's reply in a Memorandum for Record (MFR). The employee should be given a copy of this MFR and it is good practice to have the employee sign that the MFR represents the substance of his/her oral reply.
  5. At no time during the pre-decision stage should you make comments, commitments, or observations which would indicate either that you have made a decision or are predisposed in any direction. Neither should you argue with the employee about the merits of the proposed action. At all times, you should remain calm, neutral, attentive and open-minded.
  6. In order to ensure the disciplinary action is taken in a timely manner, your decision should be rendered as soon as possible after the expiration of the reply period or upon receipt of the employee's reply (if provided).
  7. Once the reply period (plus any extension granted) has expired, you are ready to start the decision process. In any disciplinary case, in addition to considering the notice of proposed action, the MFR(s) or any oral reply, and any written reply, there are a number of other factors which you need to consider in making your decision. These factors are referred to as the "Douglas Factors" after a precedent setting decision of the Merit Systems Protection Board (MSPB).
    After considering all the information available to you, your decision will be one of the following:
    1. The proposed action is sustained. Based on the facts presented, the proposed action is warranted.
    2. The penalty is reduced. The employee committed the infraction; however, there are relevant, extenuating circumstances which warrant a less severe penalty within the range provided by the DA Table of Penalties Pertaining to Various Offenses.
    3. The proposed action is cancelled. Based on the facts presented, the proposed action is unwarranted.
  8. As a Deciding Official, you cannot impose a more severe penalty than the one proposed. If for some additional facts come to light or you feel strongly that a more severe penalty is warranted the employee must be issued a new proposal memorandum, be given additional time to reply, and a decision must be made by a higher level official than you. In this case, you should immediately consult with your servicing CPAC specialist as to the proper procedures to follow.
  9. Based upon this material, a formal notice of decision will be prepared. It will inform the employee of your decision and any rights he/she may have to grieve or appeal the action.

If you have any questions or need assistance at any time during these proceedings, please contact your servicing CPAC.

Content last reviewed: 07/16/2014 - KRB/BWR