Ask the Lawyer

Agencies: Don’t Interfere with the oral reply

We’re seeing more deciding officials tell us that we (the employee’s representative) cannot speak at the oral reply. Many have now taken this to a new level, by repeatedly insisting that the only person who can speak is the employee, becoming hostile when we attempt to explain why we are legally allowed to make a presentation. Ultimately, the deciding official becomes visibly angered from the debate, creating an appearance that the employee is not getting a fair oral reply.

Sometimes the tactic used by the deciding official is to repeatedly (and with a hostile attitude) say that he only wants to hear from the employee, while we (the employee’s legal representative) are attempting to present a legal or factual argument. It’s intimidating to the employee when this happens.

Whether a misunderstanding or an intentional tactic to cut out the employee’s representative, it’s legally wrong and potentially reversible error to interfere with the employee’s oral reply presentation.

Federal statutes grant employees the statutory right to “be represented by an attorney or other representative” during the process used to impose all adverse actions. Other than allowing an agency to determine whether the representative appointed by the employee has a conflict of interest, no federal law allows the agency to tell an employee what to say at the oral reply or who can speak for him/her.

The decisionmaker should have an open mind to what the employee, or his representative, has to say. Not having one makes the agency vulnerable to claims that the disciplinary action was unconstitutionally predetermined.

They should also be reminded that getting angry with an employee who exercises his/her appeal rights is unlawful. It is a prohibited personnel practice to retaliate against an employee for “the exercise of any appeal, complaint, or grievance right granted by any law, rule, or regulation.” That includes retaliating against an employee because he/she used an attorney or union representative to assist in defending against a disciplinary action.

There’s a growing culture inside the federal workforce of being angered by an employee who attempts to vigorously defend against a disciplinary action. Beware, it’s unlawful.

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