This IRM states the policy of the IRS with respect to taking and processing adverse actions. Under regulations prescribed by the Office of Personnel Management (OPM) an adverse action, as defined below, may be taken against an employee only for such cause as will promote the efficiency of the Service.

To the extent this IRM conflicts with the National Agreement (NA), the provisions of the NA shall prevail for bargaining unit (BU) employees.

This IRM section covers adverse actions. Adverse actions are defined as:

Non-disciplinary actions and lesser disciplinary actions are covered in IRM 6.751.1.

Suspensions of less than fifteen (15) calendar days are covered in IRM 6.752.1.

The following topics are covered in 6.751.1 and should be used/referenced if management determines a suspension of fourteen (14) days or less is effected:

5 CFR 752, Subparts C,D

5 USC § 7501– 7504

IRM 6.751.1

29 CFR Part 1614

5 USC § 7114(a)(5) and 7121(b)(3)

Administrative Leave - the placement of an employee in a non-duty status without charge to leave or loss of pay.

Appellant – an individual who submits an appeal to the Merit Systems Protection Board (MSPB).

Bargaining unit (BU) employee – an employee included in a bargaining unit certified by the Federal Labor Relations Authority (FLRA).

Complainant – an individual who files a complaint typically through the Equal Employment Opportunity (EEO) complaint process.

Current continuous appointment – a period of employment or service immediately preceding an adverse action without a break in Federal civilian employment of a workday.

Day – a calendar day.

Deciding Official – the management official designated to make the final decision in connection with a proposed adverse action.

Discipline – measures intended to correct employee misconduct that adversely affect the efficiency of the Service and to encourage employee conduct in compliance with the standards of conduct, policies, goals, work procedures, and office practices of the IRS and the Federal Service.

Employee – an individual in the competitive service who is not serving a probationary or trial period under an initial appointment, or who has completed one (1) year of current continuous employment under other than a temporary appointment limited to one (1) year or less.

Indefinite Suspension- [5 CFR 752.402(e)] the placing of an employee in a temporary status without duties and pay pending investigator inquiry or further Agency action.

Grievant – an individual who files a grievance through the internal grievance process.

Last Rights – a meeting between management and an employee during which time the employee is advised of management’s decision to propose the employee’s removal (or reduction in grade). The employee has the option to receive the letter proposing the action or voluntarily choose another option such as resign in lieu of removal or request a change to a lower-graded position in lieu of a downgrade.

Nexus – a reasonable connection or factual relationship between the reasons for the action taken and the efficiency of the Service. Nexus is presumed if the misconduct occurs while on duty or on government premises but must be established if the misconduct occurs while the employee is not on duty or on government premises.

Notice Period – the period of time that begins the day after the date an employee receives a written proposal of an action based on misconduct and which ends on the effective date of the action, if effected.

Offense – a cause of action based on an employee’s delinquency or misconduct.

Oral Reply Officer – agency designated official with authority to either recommend or propose an adverse action.

Pay – the rate of basic pay fixed by law or administrative action for the position held by an employee.

Preponderance of the Evidence – degree of relevant evidence that a reasonable person, considering the record as a whole, would accept as sufficient to find that a contested fact is more likely to be true than untrue. This is the standard of proof the Agency must meet when taking an adverse action against an employee.

Prior Offense – a prior cause of action for which a disciplinary penalty has been imposed and which is still a matter of record.

Progressive Discipline – imposition of the least serious disciplinary or adverse action applicable to correct the issue or misconduct with penalties imposed at an escalating level for subsequent offenses.(See IRM 6.751.1.6)

Proposing Official – management official who has the delegated authority to issue a notice of proposed adverse action. (See IRM 1.2.2.45.6)

Reduction in Grade – the involuntary assignment of an employee to a position at a lower classification level under a position classification system.

Reduction in Pay – an involuntary reduction in the rate of basic pay fixed by law or administrative action for the position held by the employee. Reduction in pay does not include the involuntary loss of any differentials such as standby pay, night work, overtime, hazardous duty, or holiday pay.

Reduction in Grade and/or Pay – an involuntary assignment of an employee to a position at a lower classification level under a position classification system or an involuntary reduction in the rate of basic pay fixed by law or administrative action for the position held by the employee. Reductions in grade or rate of pay of an employee may be for either disciplinary (conduct) or non-disciplinary matters. This would include correction of an erroneous personnel action. An example of a non-disciplinary reduction in grade or pay is reassignment of a wage grade employee to another location having a lower wage schedule for each wage level. An example of a correction to an erroneous personnel action is to correct the erroneous placement of an employee by promotion or appointment into a position to which the employee is ineligible for promotion or appointment.

Removal – an involuntary separation based on the decision of a Service official exercising delegated authority which terminates the employer-employee relationship. Such action may be based on disciplinary (misconduct) or non disciplinary (inability to perform one’s job due to medical conditions) reasons.

Suspension – placing an employee, for conduct reasons, in a temporary status without duties or pay

An adverse action may only be affected against an employee"for such cause as will promote the efficiency of the Service."

When taking an adverse action against an employee the Agency must prove, by a preponderance of evidence, that the employee engaged in the misconduct described in the notice. Preponderance of evidence is: "the degree of relevant evidence that a reasonable person, considering the record as a whole, would accept as sufficient to find that a contested fact is more likely to be true than untrue." This definition can be found in 5 CFR 1201.56. http://edocket.access.gpo.gov/cfr_2009/janqtr/5cfr1201.56.htm This is the standard of proof the Agency must meet when taking an adverse action against an employee.

For the action to be sustained, the Agency must prove that the efficiency of the Service was or could have been adversely impacted by the misconduct, and that the penalty was within the bounds of reasonableness.

Some personnel actions must be voided because they never should have occurred. In those cases, the corrective action may be non-disciplinary, but is adverse to the employee.

The procedures for correcting an erroneous personnel action are supplemented in Agency Wide Support Service's (AWSS') Policy Number 293-8, Cancellation/Correction of Personnel Actions. http://awss.web.irs.gov/ess/pps/archive/sop-uog/293-8_081706.pdf

If the employee's personnel action was cancelled after such action was effected because the Employment Office, or Office of Personnel Management (OPM) later determined the employee did not meet the qualification requirements for promotion, or that the employee had been improperly hired, the corrective action may entitle the employee to due process rights found in 5 USC 7513 and 5 CFR Part 752. In the past, Employment Offices or Payroll Centers have cancelled an action and then explained the situation to the employee. The employee was then returned to the grade/step they were promoted from, or they were separated from the Service without benefit of any due process rights. This may not be the appropriate course of action to take under the circumstances.

If the employee is serving a probationary period, with less than one year of current continuous service, then the employee may not be entitled to due process procedures (i.e., proposal and decision notice) found in 5 USC 7513 or 5 CFR Part 752. However, the Employment Office must still contact the servicing Labor Relations Office and the supervisor of the employee under these circumstances. The Labor Relations/Employee Relations Specialist should advise management on options such as having an information discussion with the employee to offer a voluntary change to the previously held position (if the action was an erroneous promotion) or voluntary resignation (if the action was an erroneous appointment). If the employee does not elect to voluntarily return to the former position or resign, action to change the employee to return the employee to the former position or separate during the probationary period should be taken.

For those employees who are not serving a probationary period, in accordance with 5 CFR Part 752, subparts C and D, and 5 USC 7512 an adverse action may be non-disciplinary. This could include a reduction in grade or pay that will promote the efficiency of the Service. This is true even when an appointment or promotion is erroneous. If the personnel action was effected by a person with authority to do so; the employee was given a report date or effective; and the employee actually reported and performed the duties of the new or higher graded position, then any resulting change to lower grade or pay, or separation entitles the employee to adverse procedures. [See Scot v. Navy, 8 MSPR 282 (1981); Pfaff v. Defense Investigative Services, 25 MSPR 633 (1985)]. Several cases involving employees who were not provided with due process rights when an erroneous personnel action was taken were appealed to the MSPB. The agencies were not sustained when those cases involved the cancellation of erroneous personnel actions after they were effected. [See Travaglini v. Dept. of Education, 23 MSPR 417 (1984); and Brock v. Dept. of Navy,49 MSPR 564 (1991)]. If the employee is not given due process rights in accordance with 5 USC 7513 and 5 CFR 752, and the employee appeals the action, the Agency's decision will likely be reversed due to a harmful procedural error.

After reviewing the facts of the case the servicing LR/ER Specialist will make a decision as to whether or not adverse action procedures must be followed. The servicing LR/ER Specialist will advise management on procedures for taking a non-disciplinary adverse action which will result in: a change to lower grade; change in pay; or removal from the position and/or Service. A letter must be issued to the employee advising him/her of his/her rights under 5 CFR Part 752.401.

The correction or cancellation of a personnel action may result in a debt. If so a debt is established at the National Finance Center (NFC). The employee is issued a notification letter which provides their rights under the Debt Collection Act of 1982 and the Debt Collection Improvement Act of 1996, The employee will work directly with the appropriate Payroll Center (currently Austin) to obtain details and circumstances surrounding the erroneous action. The details of the action should be included in the Notice of Proposed Adverse Action. As with any action decisions are made on a case-by-case basis.

The Process Chart (Exhibit 6.752.2-1) is for LR/ER Specialists use when processing the correction of an erroneous personnel action. Employment Offices are required to contact the appropriate LR/ER Office and notify them when a determination has been made that an erroneous personnel action has been processed. A Staffing Specialist will initiate a Documentation of Erroneous Personnel Actions Form See Exhibit 6.752.2-1. in all cases in accordance with AWSS's Policy Number 293-8, entitled, Cancellation/Correction of Personnel Actions. (http://awss.web.irs.gov/ess/pps/archive/sop-uog/293-8_081706.pdf)

In the event an employee engages in off duty misconduct, the Agency may take an action against that employee for the off duty misconduct only if a nexus (connection) can be established between the misconduct and the efficiency of the Service. In other words, there must be a connection between the misconduct and the Agency’s ability to successfully carry out its mission. In taking actions based on off duty misconduct, such things as adverse publicity, the notoriety of the offense, strained relations or apprehension on the part of fellow employees, or evidence or indication of dishonesty may be a cause and should be considered. If the event occurs off duty and/or off government premises, the nexus must be stated in any letters issued to the employee.

If the employee engages in misconduct while on duty and/or on government premises, nexus is generally presumed and need not be specifically stated in any letters issued to the employee.

Regulatory (5 C.F.R. 752) and statutory (Subpart D of 5 U.S.C. 752) requirements entitle employees to the following rights in any adverse action proceeding:

The regulations are clear that the employee’s rights must not be violated. Specifically provided for in the regulations is that, in preparation of any reply (written or oral), the employee shall:

In addition to the statutory and regulatory requirements above, BU employees have contractual entitlements. If management decides to propose to reduce an employee in grade or to remove the BU employee from the Service, and if management decides to give the employee "Last Rights," prior to proposing the action, management must advise the BU employee, in writing, that he has the right to consult with NTEU and to have a representative present prior to making such a decision. The written notification must be signed by management (typically the management official conducting the meeting) and the BU employee. A copy must be provided to the BU employee and may be provided to the representative at the BU employee’s request. Employees must be able to make the decision whether to resign freely and without undue influence or pressure. Resignations may not be secured by coercive or deceptive means. If a resignation is challenged and the fact-finder determines it was secured by coercion or deception, the fact-finder may determine the resignation was not voluntary and order the employee to be returned to his/her former position with back pay and other benefits as required by law.

As with any administrative action, the Agency must review the misconduct and determine what action should be proposed. The Guide to Penalty Determinations http://core.publish.no.irs.gov/docs/pdf/32178h07.pdf includes lists of offenses and first, second, or third offenses which may result in a proposed adverse action. There are also certain statutory violations that require a proposed adverse action even if it is the employee’s first offense. For example, if an employee understates a tax liability, and the Agency determines such understatement is willful in violation of Section 1203(b)(9), a proposal to remove must be issued. Pursuant to Section 1203(c), only the Commissioner of the Internal Revenue has the authority to mitigate violation of Section 1203(b).

Before deciding on an administrative action, management must consider aggravating or mitigating circumstances or other factors that may have some bearing on the issue. This is consistent with the Guide to Penalty Determinations and Douglas Factors. There is an exception to this as noted above. If an employee is found to have violated any provision of Section 1203(b), only the Commissioner of the Internal Revenue Service has the delegated authority to mitigate a proposal to remove.

Management may become aware of employee misconduct from various sources. For example, the misconduct could be directly observed by the manager or a management official; it could be reported to a manager or management official by another employee or taxpayer; it could be a tax matter reported via the Employee Tax Compliance (ETC) Group; or it could be reported to the Treasury Inspector General for Tax Administration (TIGTA).

If observed and/or reported to management or a management official and the misconduct is administrative, management should conduct an investigation into the misconduct. Managers are encouraged to consult with LR/ER prior to conducting an investigation into the alleged misconduct to ensure all facts are gathered before actions are recommended. For example, ETC identifies a late filed return by an employee. A thorough investigation into the circumstances of the late filing must be conducted. In this example, fact-finding is critical so that management can determine if the employee’s actions were willful and in violation of Section 1203(b)(8). At a minimum, the manager should ask the employee why the return was filed late, when it was filed, and what circumstances prevented the employee from filing the return on time.

If the misconduct involves or potentially involves criminal activity on the part of the employee, the manager must contact TIGTA prior to conducting any investigation into the alleged misconduct. If TIGTA decides to conduct an investigation, the manager should not initiate any investigation and should cooperate fully with TIGTA’s investigation.

Once management has determined administrative action is appropriate, the LR/ER specialist assigned the case should conduct appropriate research to ensure the recommended course of action is consistent with the Guide to Penalty Determinations, past practice, and current case law.

The LR/ER specialist has the following research tools available: Automated Labor Employee Relations Tracking System (ALERTS), CyberFEDS, and decisions made by the Merit Systems Protection Board (MSPB) or FLRA.

If the recommendation made by management is inconsistent with similar cases identified via ALERTS research or existing case law, the specialist should consult with the lead or supervisor. In that case, the specialist should have a subsequent discussion with management outlining the results of the research and explaining the pros/cons of pursuing the recommendation. For example, management decides to propose removal for an employee’s continued tardiness. The assigned LR/ER Specialist conducts research and finds that the recommended course of action is inconsistent with similar cases and that case law decisions would not support a removal given the facts of the case. The specialist should, after consultation with the lead and supervisor, initiate discussions with the proposing official to explain the research conducted and the potential outcome if management decides to propose removal. The discussion and results should be documented in the case file by the specialist. Ultimately, the decision on the level of discipline is management’s. The role of an LR/ER specialist is advisory.

An employee against whom an adverse action is proposed must be given advance notice. The notice shall include:

There is exception to the statutory/regulatory thirty (30) day advance notice period in an adverse action proceeding discussed in 6.752.2.11 above. That exception applies if an agency has a reasonable cause to believe that an employee may be guilty of a crime for which the sentence of imprisonment may be imposed. This is routinely referred to as the "crime provision," and allows an agency to shorten the advance notice period by proposing a removal action or a suspension (including an indefinite suspension), receive the employee’s replies and issue a decision on the matter in seven (7) calendar days rather than the full thirty (30) calendar day advance notice period.

This section deals only with the duration of the advance notice period (seven (7) calendar days versus thirty (30) calendar days) when management decides to impose the crime provision. All other procedural aspects as outlined in 6.752.2.7 and 6.752.2.11, of an adverse action apply.

The crime provision may only be used to propose removal or an indefinite suspension.

When the evidence establishes retention of the employee in an active duty status is inappropriate, proposing an indefinite suspension under the crime provision is beneficial as it allows management to defer any final judgment until judicial proceedings are completed or until such time when sufficient evidence to support a removal is available or usable.

Evidence necessary to trigger an indefinite suspension or shortened notice period, is an indictment or arrest and detention for further legal action by a magistrate. Either an indictment or arrest and detainment provide sufficient evidence to establish a reasonable cause and may be sufficient evidence to shorten the advance notice period. The Agency may also consider a shortened notice period if the Agency has facts to support reasonable cause, conducts and investigation into the matter and finds that an employee may have committed a crime for which the sentence of imprisonment may be imposed. However, a mere arrest is not sufficient evidence to establish a reasonable cause, thus the Agency should not use the shortened notice period to propose/effect an action in that situation.

If the misconduct occurred off duty and/or off government premises, there must be a nexus (connection) between the crime the employee is believed to have committed and the efficiency of the Service and it must be specifically stated in the advance notice of proposed adverse action. There are exceptions. For example, if the employee is charged with an egregious act of misconduct or crime, such as murder, nexus can be presumed.

If retention of the employee in an active duty status would be inappropriate but the Agency does not wish to propose/effect a removal action (e.g., the Agency wishes to defer until the criminal proceedings have been adjudicated or if evidence to substantiate a removal is not currently available or usable) the Agency should consider proposing an indefinite suspension. The benefit is that the employee is quickly taken off the Agency’s rolls while the matter is being adjudicated and/or investigated. Furthermore, unlike a removal action, an indefinite suspension is not necessarily based on provable misconduct rather it is based on the agency’s reasonable cause to believe that the employee has committed a crime for which the sentence of imprisonment may be imposed. As a result, the reason for the proposed action is not the misconduct itself. Instead, the reason is the indictment, or arrest and detainment of the employee which establishes a reasonable cause to believe the employee has committed a crime for which the sentence of imprisonment may be imposed.

If the Agency proposes a removal under the crime provision and the employee asserts that submission of any reply to the proposed action would prejudice the defense in the criminal action, a determination should be made on whether or not the record (evidence) supports the employee’s contention. The supporting LR/ER office should consult with General Legal Services (GLS) before making such determination. If the employee’s defense would be prejudiced by making a response to the proposed action, the Agency should decide an indefinite suspension rather than removal. In that event, the employee would be advised of the indefinite suspension pending adjudication of the criminal actions (presuming the reasons and specifications/evidence sustain such action). Refusal to reply based on the belief that such reply would prejudice the employee's defense should not delay the action.

Tax returns or return information may not be disclosed in proposing or effecting an adverse action, except as provided by the specific provisions of Section 6103 of the Internal Revenue Code. To the extent that a return or return information is relied upon in proposing or effecting discipline, the confidentiality of the information must be safeguarded.

Under the provisions of Section 6103(b)(1), a tax return is defined as "any tax or information return, declaration of estimated tax, or claim for refund required by, or provided for or permitted under the provisions of this title which is filed with the Secretary (of the Treasury) by, on behalf of, or with respect to any person and any amendment or supplement thereto, including supporting schedules, attachments or lists which are supplemental to, or part of, the return so filed."

Return information is defined as "a taxpayer’s identity, the nature, source or amount of his/her income, payments, receipts, deductions, exemptions, credits, assets, liabilities, net worth, tax liability, tax withheld, deficiencies, over assessments, or tax payments, whether the taxpayer’s return was, is being, or will be examined or subject to other investigation or processing, or any other data received by, recorded by, prepared by, furnished to, or collected by the Secretary with respect to a return or with respect to the determination of the existence, or possible existence of liability of any person under this title for any tax, penalty, interest, fine, forfeiture, or other imposition or offense, and any part of any written determination or any background file document relating to such written determination which is not open to public interpretation."

Section 6103(l)(4)(A) of the Internal Revenue Code permits the disclosure of returns or return information to an employee or former employee, or to a duly authorized representative, when, upon written request, the appropriate official judges the disclosure to be relevant and material to a proceeding involving personnel or claimant representative matters. Since disciplinary or adverse actions are proceedings involving personnel matters, a duly authorized representative may be authorized access to return or return information if such access is or may be relevant and material to the disciplinary or adverse action. A request for disclosure under 6103(l) (4) (A) will be evaluated by the appropriate official with delegated authority.

When dealing with return and return information in disciplinary letters, code the return information, attach a key, and indicate that the employee is restricted from making disclosures of tax information without proper approval.

A sanitized copy of the evidence file is normally necessary when an action is appealed to a third party. At the proceeding or hearing, an employee or an employee’s representative may use the sanitized tax information contained in the evidence file submitted by the Service to the third party. Other tax information may not be disclosed by the employee, or the employee’s representative, unless a separate written request has been submitted to and approved by the Service.

In the event that disclosure of the tax information would seriously impair Federal tax administration, release of tax information to an employee and the authorization of disclosure of tax information by the employee may not be granted.

When an employee’s own tax matters are an issue in a disciplinary action under appeal to a third party by the employee, disclosure of the employee’s tax records to the third party is permissible.

When an employee’s failure to comply with the tax laws is a reason for taking an adverse action, use the following in the remarks section of the Personnel Action; "Reason for action – Violation relating to IRM 6.751.1.22."

Ensuring the charges are properly framed is crucial when preparing an advance notice. Failure to properly frame the charges or provide sufficient specificity when describing the misconduct may result in reversal if the employee establishes that he/she did not understand the full nature of the charges, thus was denied due process rights. Consequently, specialists should familiarize themselves with statutory requirements and "lead" cases to completely understand the requirements needed to have a charge sustained.

Great care should be used when deciding upon the charges. The material relied upon should be carefully reviewed to determine whether or not the evidence supports the charge and that the Agency can meet its burden of proof based upon that evidence. For example:
Blue Violet, is a Customer Service Representative. On March 18, 2008, the manager listens to several of Violet’s telephone calls and finds that Violet was rude to taxpayers. The manager investigated further and found that Violet also hung up on approximately twenty-five (25) taxpayers in less than two (2) hours on that same day.Given the nature and seriousness of the misconduct, management decides to propose a suspension of fifteen (15) calendar days. Care must be taken to ensure that the evidence to support the charge is retained. If it is decided to charge Violet with "Discourteous Conduct with Taxpayers" the evidence must establish that Violet was discourteous to taxpayers. Further, the evidence must establish that the misconduct warrants a suspension of this nature. Examples of the types of evidence needed to prove the charge would be recordings of the telephone conversations between Violet and the taxpayers and/or written statements from the taxpayers regarding Violet’s behavior. The recordings should demonstrate Violet was discourteous to the taxpayer and the Agency’s proposed action is warranted. In addition, there must be evidence such as records/reports that Violet hung up on the taxpayers, if this misconduct is cited in the letter. The records/reports should identify the date and times that Violet engaged in the misconduct.

Caution must also be exercised when using certain terms in the charge. For example, charging an employee with "falsification, " "insubordination," or "theft" will require proof that the employee’s actions were intentional . In the case of "falsification" the Agency must prove the employee intentionally falsified the document or provided false information. In the case of "insubordination, " the Agency must prove the employee intentionally decided to ignore a managerial order or directive. In the case of "theft" the Agency must prove the employee intended to permanently deprive another of an object (money or other item) that did not belong to the employee. In the case of "threat " the factors outlined in the Metz case must be proven. The "Metz test" comes from an MSPB case decision [Metz v Department of Treasury 23 MSPR 576 (1984)] and requires consideration of the following:

Further, care should be taken to avoid "compound" reasons as everything placed in a charge must be proven. Use the example above of Blue Violet, the Customer Service Representative who was rude and hung up on approximately twenty-five (25) taxpayers in less than two (2) hours on March 18, 2008. Management decides to propose a suspension of fifteen (15) calendar days. If you use the reason: " Rude and Discourteous Conduct with Taxpayers," you must be able to prove that Blue Violet’s conduct was both discourteous and rude. If you are unable to prove one of the charges, either discourteous or rude conduct, the entire reason will fail. In a recent decision, Valenzuela v Department of the Army http://www.mspb.gov/netsearch/viewdocs.aspx?docnumber=305727&version=306102&application=ACROBAT , the Board reopened the case after a petition for review was filed. One of the charges related to "providing false or misleading" information. In the initial decision, the judge sustained the charge commenting the agency proved the information provided by appellant was certainly misleading but not false. The Board decided that, in this case, the agency did not meet the burden of proof – that it was required to prove the information was both false and misleading. Consequently, in developing charges the use of the term "or " has the same meaning as use of the word "and" because both are considered compound charges. Better charges would be "Rude Conduct with Taxpayers," or "Discourteous Conduct with Taxpayers. "

Specifications must be descriptive enough so that the employee can understand the full nature of the charges. Lack of specificity can result in reversal of the action if the employee proves the inability to prepare an adequate defense because he did not understand the nature of the charges. In the example above, Blue Violet engaged in discourteous conduct when assisting taxpayers and hung up on taxpayers. The charge (reason) is " Discourteous Conduct with Taxpayers." The expectation is that Blue Violet (and all other employees) will conduct themselves in a businesslike and professional manner when dealing with taxpayers. An example of a specification for discourteous conduct could read something to the effect of:

In a decision from MSPB, Mason v Department of the Navy 70 MSPR 584, 586-89. 1996, the Navy’s action was reversed because the appellant was not given sufficient information to mount a meaningful defense and appellant adequately did not receive detailed notice of the alleged misconduct prior to the hearing. Essentially, Mason was charged with " improper and unacceptable conduct in the workplace." The underlying specifications referenced racial slurs allegedly made by Mason. The advance notice did not provide Mason with any details of when or where he allegedly made the slurs. Mason made several efforts during the discovery process to find out answers to the questions. Nothing was provided by the Agency until the matter was appealed to MSPB. At that time, the agency produced testimony from witnesses to the alleged events. The Board determined that the Agency failed to give the appellant adequately detailed notice prior to the hearing of the alleged misconduct. This in turn, prejudiced his ability to mount a meaningful defense and denied him due process.

In addition, if citing a rule or regulation such as the Office of Government Ethics Standards of Ethical Conduct, the citation should be exactly and directly applicable to the facts of the case and that such citation must have existed at the time the offense (misconduct) occurred. The absence of any citation or rule does not mean the action is condoned or permissible or that an adverse action cannot be proposed and/or effected for the employee’s behavior.

When the reason is non-disciplinary, the specific reasons and any offers made to avoid or minimize the adverse action should be included. The employee’s response(s) to such offers should be cited particularly when a separation or demotion results from a "failure to accompany activity or function" in transfer of function situations or when an employee fails to accept reassignment to another commuting area in a directed reassignment case.

When preparing an advance notice, caution should be exercised to avoid "pyramiding" when citing the reasons for the proposed adverse action. "Pyramiding" is defined as the use of separate reasons for the same incident. It is permissible to use the same event only if separate and distinct offenses are involved. The following is an example of "pyramiding:"

As illustrated above, both reasons relate to the same incident. Typically, "pyramiding" is viewed by third parties as an effort to support a higher penalty and will likely result in the third party determining that one of the reasons should not be sustained as there is insufficient evidence to support it. If that occurs, it is likely the penalty would be mitigated.
The following illustrates an event where separate and distinct offenses occur:

In the above illustration, the same event can legitimately be used, as there are separate and distinct acts of misconduct which can form the basis of an action.

Finally, it is important to note that, with the exception of the"crime provision," where the reason may an indictment or other legal proceeding, or a non-cause action, the reason must always refer to personal conduct of the employee (what the employee actually did or failed to do).

The notice of proposed adverse action See Exhibit 6.752.2-3. must be issued to the employee in writing and must include the information below. For specific information regarding procedures related to adverse actions refer to 6.752.2.11. The proposed adverse action must:

If after issuing the advance notice but before a final decision is made, the proposing official finds a need to change or amend the nexus statement(s) in the advance notice, the employee must be notified in writing of those change(s) or amendment(s) and be given an additional ten (10) calendar days to respond to the changed/amended nexus statement(s). If the employee is a member of the BU, refer to applicable provisions of the NA.

Content of proposal if the Agency decides to invoke the crime provision. The advance notice ( See Exhibit 6.752.2-5. ) should, at a minimum, include the following elements in addition/or in lieu of the procedures for adverse actions as outlined in 6.752.2.13:

If the Agency proposed a removal action but decided to indefinitely suspend the employee, the decision should note that the reason(s) and specification(s) are sustained only with respect to the fact that the evidence establishes that there is a reasonable cause to believe the employee has committed a crime for which the sentence of imprisonment may be imposed. If an indefinite suspension is decided, the conditions which will bring the action to an end should be included in the decision. (See Exhibit 6.752.2-6)

Employees have a right to choose a representative, provided that:

Once a representative is chosen, the employee should advise the proposing official, in writing, of the choice of representative. In the event the employee’s choice of representative causes a conflict of interest or position, the proposing official should consult with the servicing LR/ER office. If it is determined that the representative would cause a conflict of interest or position, the following procedures must be followed:

The time periods must be enforced to avoid prolonging the advance notice period any more than is absolutely necessary. The proposing official should consider reasonable requests for additional time to designate another representative as employees may encounter difficulties attempting to secure representation.

The agency has the burden to prove that delivery and receipt of the advance notice of proposed action was timely.

Normally, employees will remain in a duty status in their work areas during the advance notice period unless the employee is a seasonal employee and would otherwise be placed in non-duty status due to lack of work.

Care should be taken when considering "enforced leave. " MSPB, in prior case decisions determined that placement of an employee on enforced leave for more than fourteen (14) calendar days was equivalent to a suspension which could be appealed to MSPB. Therefore, alternatives to enforced leave must be considered. For example, if the employee requests leave, such request should be granted as this would be a voluntary action on the part of the employee. Additional steps to consider include alteration of the employee’s work duties, excuse the employee for short term absences, or the Agency could propose or effect an indefinite suspension if there is a need to remove an employee from rolls quickly. The employee may also submit an application for a disability retirement.

If management has proposed an indefinite suspension under the crime provision, they may determine that the employee’s presence in the work place could constitute a threat to other employees or government equipment/security. In that case, management may decide to place the employee on administrative leave for the duration of the shortened advance notice period or period of investigation. If the employee is placed on administrative leave for conduct reasons, the appropriate authorities to permit this must be secured consistent with the procedures for placement on administrative leave for conduct reasons as outlined in the Memorandum from the Deputy Commissioner for Operations Support,"IRS Guidance on Administrative Leave Related to Conduct Related Disciplinary or Adverse Actions" issued in January 2006, http://Appeals.web.irs.gov/managers/newsletters/2006/Oct2006/Guidance_Admin_Leave_to_Disciplinary_Adverse_Actions.pdf for placement of an employee on administrative leave due to conduct reasons.

Employees facing an adverse action have three (3) options to reply to the proposed action. They may submit a written reply, and/or request an oral reply. The employee may elect to do both (a written and an oral reply), one (a written reply or an oral reply), or neither.
Written Reply – If the employee elects to submit a written reply, there is no requirement that it be in an affidavit form or under oath. The employee may elect to include affidavits or other evidence in support of the written reply. Any written documents (including attachments provided by the employee) are made part of the adverse action file and must be reviewed and considered by the deciding official prior to making a decision.
Oral Reply – If the employee elects to have an oral reply, he may elect to attend or not attend that reply. As with the written reply, the employee may elect to include affidavits or other evidence in support of the oral reply. Any written documents (including attachments provided by the employee) are made part of the adverse action file and must be reviewed and considered by the deciding official prior to making a decision.

The reply (whether written, oral, or both) is the employee’s opportunity to provide the proposing official with an uninhibited defense, including any denial of the reasons for the proposed action, present any mitigating factors they wish considered, and/or make a plea for a less severe action. The information provided by the employee or a duly authorized representative must be reviewed and considered by the deciding official before making a decision.

When management proposes to indefinitely suspend an employee under the crime provision, care should be taken to ensure the oral reply and/or written reply is received within the shortened time frame (seven (7) calendar days). To avoid delays in scheduling an oral reply, LR/ER specialists are encouraged to work with the proposing official to identify a date for the oral reply on or before the date the proposal letter is issued. In the event the employee submits a written reply, the specialist should ensure the proposing official reviews the document and makes a recommendation to the deciding official as quickly as possible.

As discussed in 6.752.18.2 above, an oral reply is an employee’s opportunity to present an uninhibited oral defense against the charges stated in the proposed adverse action. The Agency does not argue or justify its actions during the reply, the oral reply is not a "formal" hearing, and the oral reply officer should not permit the proceedings to become adversarial.

The procedures for an oral reply are as follows:

Typically, the proposing official will serve as the oral reply officer and conduct the oral reply; however, in extraordinary situations; the proposing official may designate another manager to serve as the oral reply officer. If another manager is designated to serve as the oral reply officer, that manager must be a higher grade and/or rank than the employee making the reply. Further, that manager may not be a part of an investigative organizational unit (e.g, Criminal Investigations), unless the employee is part of that unit.

The primary function of the oral reply officer is to conduct an orderly proceeding, encourage open and frank proceeding, and develop or as necessary, clarify by non-provocative questions on factual matters on which an equitable determination may be made. While the employee may be highly emotional during the proceedings, the oral reply officer must carefully guide the employee into rational discussions of the matters the employee wishes to address. Thus it is imperative that the oral reply officer avoid any appearance or inference of an adversarial proceeding. If questions are needed for clarification purposes, those questions should be asked to elicit information only.

To prepare for the oral reply, the oral reply officer should – at a minimum:

Requests for postponement of the oral reply should be considered. However, if the request would cause a significant delay in a final decision (e.g., a request to postpone for more than 60 calendar days) it should be granted in rare circumstances. If a request for a postponement is denied in all or part, the oral reply officer should note the reasons for the denial in the file.

Once the oral reply is concluded, the oral reply officer will recommend an action to the deciding official, in accordance with the procedures outlined below:

The deciding official in any adverse action must be at least one (1) administrative level higher than the proposing official. Delegation order 81 specifies which officials in each organizational segment may decide an adverse action. Typically this action is delegated to the first level executive within the business unit and may not be redelegated. While the deciding official may be aware of the existence of a case or action being taken against an employee; he may not influence the proposal or proposing official or consider information/evidence that was not included in the proposal letter unless that information/evidence was shared with the employee and/or the representative and the employee is given time to review and reply to such information/evidence. If the deciding official influences the proposal or proposing official or if the deciding official considers information/evidence not included in the proposal letter or shared with the employee and/or representative, the Agency’s action could be reversed as the employee could argue that the outcome was predetermined by the Agency.

Prior to the issuance of the decision letter, the Service may amend or change statements of nexus placed in proposal letters dealing with off-duty misconduct.

Employees will be notified in writing of any amended or changed nexus statements. The employee will have ten (10) workdays to respond in writing to the statement. See also, for bargaining unit employees, applicable collective bargaining agreements.

Alternatives to Enforced Leave. In the case of Pittman v. MSPB Civ. No. 87–3215, 11/4/87, the Court of Appeals held that the placement of an employee on enforced leave for more than fourteen (14) days is inherently disciplinary and tantamount to an appealable suspension. OPM has suggested that the following alternative to enforced leave should be considered, alone or in combination and depending on the circumstances: obtaining medical information in accordance with 5 CFR 339, voluntary leave, alternative work assignments, short-term excused leave, indefinite suspension or enforced leave under 5 CFR 752, disciplinary or adverse actions under 5CFR 752 (for cause), non-disciplinary removal under 5 CFR 752 or disability retirement.

Duty Status During Inquiry or Investigation. Normally, an employee remains in a duty status in his or her regular position during an inquiry or investigation in alleged misconduct. However, in rare circumstances in which it is determined that the employee's presence at the worksite or in a particular position may pose a threat to the employee or others, result in loss of or damage to Government property, or otherwise jeopardize legitimate Government interests, the official with the delegated authority to propose an adverse action may assign the employee to another location and/or duties, if that will alleviate the problem; or may place the employee for a brief period in a paid, non-duty status. If an employee is placed in a paid, non-duty status, every effort should be made to expedite the inquiry or investigation. If an extended period of inquiry or investigation appears to be necessary, a proposed indefinite suspension or proposed period of enforced leave should be considered as appropriate. (See Exhibit 6.752.2–7 for a sample letter of proposed indefinite suspension or indefinite enforced leave.)

Duty Status During Advanced Notice Period. Assigning an employee to another location and/or to other duties, or placing an employee in a paid non-duty status is also permitted during the advance notice period. (See 5 CFR 752.404(b)(3).)

Any decision reached must be based solely on the reason(s) and specification(s) cited in the advance notice of proposed adverse action. The decision cannot be more severe than the action proposed. It may, however be mitigated to a lesser action. If the proposing or deciding official determines there is a need issue a new advance notice, the original advance notice must be withdrawn and a new advance notice issued.

If the original advance notice is withdrawn and a new notice issued, all applicable procedures must be followed (e.g., the employee must be given thirty (30) calendar days advance notice; must be advised of the specific reason(s) for the action, etc.)

Some of the reasons to consider withdrawing an adverse action and reissuing a new notice would be if:

A variety of events could cause a "harmful procedural error" and jeopardize a case. 5 USC 7701(c) requires the Board to reverse an agency action if the appellant shows "harmful error in the application of the agency’s procedures in arriving at such decision " or shows that"the decision was not in accordance with law." The agency’s procedures include those required by statute, rule, or regulation.

Examples of "harmful procedural error" include: failure to provide an employee with rights to appeal the Agency’s decision; failure to provide the full advance notice period (30 days unless the crime provision has been invoked), failure to state the reasons for a proposed adverse action in sufficient detail to allow the employee to make an informed reply; or consideration of information/evidence that is not in the proposal letter or subsequently shared with the employee or representative.

If the employee successfully argues harmful procedural error, the action cannot be sustained and the employee is typically restored to " status quo ante."

Mistakes such as typographical errors in the body of the letter are generally not viewed as "harmful procedural errors" as they would not cause the deciding official to reach a conclusion different from the one that would have been made absent cure of the error.

The final decision notice should include the following (See Exhibit 6.752.2.-12):

Employees in the BU may appeal:

Employees who are not in the BU may appeal:

Once a decision has been made, it is not uncommon for the Agency, employee and/or representative to discuss the possibility of resolving the case. This can be done before an appeal or after the employee (or representative) has filed an appeal.

In general, the executive (deciding official) has the delegated authority to settle cases he/she decided. However, there is an exception related to cases involving potential violations of Section 1203(b). If the agency determined the employee’s actions were willful and violated any of the ten (10) acts or omissions of Section 1203(b), before settling the case, concurrence from the Commissioner’s Review Board, through its Executive Director must be obtained. The procedures for this process are outlined in the Information Notice http://hco.web.irs.gov/pdf/1203settle-50.pdf on settling 1203 cases for "clean records."

If the agency decides to impose some level of discipline other than a removal action and enter into a "last chance" agreement with an employee, the union must be invited to any meetings with bargaining unit employees and management to discuss such agreement. Last chance agreements give employees a final chance to be retained in the service. The agreement generally will state the specific level of discipline that will be imposed (for example: a suspension of thirty (30) calendar days). In exchange, the employee must conform to agency standards of conduct for a period of time, generally one (1) or two (2) years. The agreement usually includes a description of the employee’s misconduct. It usually states that should the employee engage in the same type of misconduct, or any other misconduct, the employee may voluntarily resign or the agency will propose and effect a removal action. In most agreements, the employee retains the right to a reply but waives any/all rights to appeal the agency’s decision in any forum. Thus, a " last chance" agreement can be a useful tool to correct employee misconduct. Sample language for a "last chance" agreement is included in Exhibit 6.752.2-12.

After the draft settlement document is reviewed via internal review processes, General Legal Services (GLS) should be consulted before providing the settlement or last chance agreement to management for review and signature. If the decision was appealed to a third party (MSPB or binding arbitration), GLS must be involved in the settlement process and generally will draft the settlement language.

All material used to support the action must be placed in a file before preparation and issuance of a notice of proposed adverse action. The file must include documents used by the proposing official to support the reason(s), supporting evidence of any cited aggravating circumstances or nexus that are cited, and any TIGTA Reports of Investigation or exhibits. The following items should be included in the file:

Copies of the file are made available, upon request, to the employee and/or his/her authorized representative. Caution must be exercised when releasing tax information. [See IRM 6.752.2.15 ].

The file/documents listed above must be maintained by the Service and furnished to the MSPB upon its request.