Agencies Can Indefinitely Suspend Indicted Feds, Board Rules

Federal agencies may suspend indefinitely any employees potentially involved in a crime before they are found guilty, according to a new ruling, as long as they have been indicted by a grand jury.

In Henderson v. The Veterans Affairs Department, the central, Senate-confirmed members of the Merit Systems Protection Board ruled VA acted properly when it removed an employee a federal grand jury had indicted on 50 counts punishable by fines, imprisonment or both.

VA told Cathedral Henderson, a former program analyst based in Atlanta, Ga., it would reconsider his status upon the completion of the judicial proceedings. Henderson was indicted on charges related to falsifying health records and lying about it. The former General Schedule-13 (as of fiscal 2014) was found guilty on all 50 counts earlier this year, and is awaiting a sentence of up to five years in prison and a maximum fine of $250,000.

Federal agencies are permitted to indefinitely suspend any employee they “reasonably believe” has committed a crime that may result in imprisonment. Henderson argued his indictment was insufficient to establish reasonable cause, as VA itself was responsible for the allegations and the evidence that led to the indictment. Absent a third-party review, Henderson argued, the agency had denied him his constitutionally-protected due process and should not be able to suspend him indefinitely.

MSPB, however, affirmed an earlier ruling from the regional administrative judge. In doing so, the board set a precedent allowing agencies to use the same suspension justification in the future.

The board suggested the “reasonable cause” necessary to validate an indefinite suspension was “virtually synonymous with the ‘probable cause’ necessary to support a grand jury indictment.” The arrest of an employee alone is not sufficient, MSPB said, but an indictment elevates the case past the suspension threshold.

“The appellant's contention that the indictment was based entirely on evidence and testimony provided by the agency, even if true, does not negate the sufficiency of the grand jury indictment,” MSPB wrote in a summary of the case.

MSPB said in a study released earlier this year the suspension would have been valid even if Henderson had not been found guilty.

“If an agency indefinitely suspends the employee based upon reasonable cause to believe there has been a crime, and the individual is not convicted, the suspension itself is still valid for the period where the belief was reasonable,” the study said.