Tips for Managers Caught in Appeals

o show he respects the administrative judge, the supervisor arrives at the Merit Systems Protection Board hearing dressed in the suit he reserves for special occasions. To project an air of confidence, he tosses a few jokes into his testimony. He injects a bit of shop talk to show he knows what he's talking about. He shades his answers with "to the best of my recollection," and "in my opinion" so he isn't pinned down on points he's not confident about.

That supervisor has just gone a long way toward losing the agency's case. So says Representing the Agency Before the Merit Systems Protection Board, designed primarily for agency attorneys but also valuable to managers and supervisors. Author Harold J. Ashner, a former MSPB and Office of Personnel Management official now with the Pension Benefit Guaranty Corporation, provides a handbook for managers drawn into the appeals process, as well as for those deciding whether to take an action that could lead to an appeal.

The book also works in the other direction, revealing agency strategies, burdens and potential weaknesses to those on the receiving end of adverse actions. Ashner outlines legal precedent in misconduct, poor performance, reduction in force and other cases commonly appealed. He describes common defenses, such as whistleblower retaliation. The author discusses burdens of proof, the weight given to various types of evidence and steps to avoid having charges dismissed on procedural grounds.

A manager had better be able to answer critical questions when bringing charges, and know how to document them. Those documents should be prepared immediately, the author advises, because records made immediately after the event are likely to be more reliable and to be given more weight by MSPB than documents prepared months later. "There is no excuse for waiting until an action is formally proposed or, worse yet, until an appeal is filed, to develop documentation that should have been developed at an earlier stage," Ashner writes.

While the temptation to throw the book at an employee might be strong, especially in misconduct cases, "the importance of selecting the right charges cannot be overemphasized. If those charges are not upheld, the agency will lose the case. The agency will not have the opportunity, on appeal, to prove the employee is guilty of other charges that warrant the action taken," Ashner writes. Similarly, thought should be given to the choice of penalty, in order to demonstrate that the decision was not made hastily. A record of careful deliberation also will help officials involved "be very effective witnesses if the penalty is challenged on appeal."

Relative Credibility

Agency officials should be able to prove that they considered the employee's oral and written replies to the charges. While management need not go into great detail, a decision to sustain charges "that includes a convincing explanation for its conclusions can be a very persuasive document on appeal and will tend to reflect fair and objective agency consideration," Ashner writes.

Testimony at a hearing also is crucial since "a great many MSPB appeals turn on the relative credibility of the witnesses presented by the agency and the appellant." Tips on improving credibility range from what to wear (normal work attire is best; dressing up makes a person look and feel uncomfortable) to demeanor (although joking helps control stress, the hearing officer likely won't be amused).

Witnesses are advised against stretching the truth to help the agency's case, worrying about inability to recall certain details, using technical jargon, and hedging answers with "I think," "I believe" and similar qualifiers.

While witnesses should be prepared for the agency representative's questions, memorized answers sound too rehearsed, the book says. When being cross-examined, witnesses should be cautious with leading questions "that can lull a witness into answering without thinking first."

Witnesses are entitled to representation when testifying and might want to consider exercising that right if the case could lead to charges against them, such as allegations of a prohibited personnel practice. As a further warning, the book describes circumstances where an agency's representative might turn on his own witness and what tactics attorneys use in such situations.

An agency's legal representative might disagree with the manager or supervisor on whether to settle. In some instances, an agency representative might believe the case isn't strong enough and should be settled. In these cases, the representative may use tactics such as bringing management officials into settlement discussions to convince them that the risk of losing is real. The total effect seems to be that the person initiating the action is on the spot as much as the person charged-which is just what managers and supervisors have been saying about the federal employee appeals process all along.

Eric Yoder is a Washington journalist.