This is an update to a previously published Federal Times story.
In early July, Social Security Administration employee Adam Pelletier marked up the windows of his agency’s Troy, N.Y., office to protest the agency’s moves to evict the local union from its offices. What followed was a confusing series of leave placements and an eventual proposal for termination that underscore a complicated bureaucracy within the federal workforce.
Federal Times published a story about Pelletier’s case on July 22, noting that the agency had kept Pelletier on administrative leave since July 2, longer than the 10 work-day cap set by U.S. Code and the Administrative Leave Act of 2016.
Pelletier subsequently received a letter dated July 24 informing him that he had, in fact, been placed on investigative leave on July 16, immediately after the 10-day limitation on administrative leave had expired. The law dictates that an agency give an employee official notice when they are placed on investigative leave, but does not specify when that notice has to occur.
On July 27, SSA sent Pelletier a letter informing him of their proposal to terminate no sooner than 30 days after the date of the letter and giving him 25 days to submit a response. The letter moved Pelletier from investigative to notice leave.
Pelletier informed Federal Times that he intends to fight the termination proposal.
In the July 27 letter, SSA assistant district manager Kathleen Sumner wrote that Pelletier had engaged in “conduct unbecoming a federal employee” and had “violated the standards of ethical conduct,” resulting in the need for his firing.
“Your blatant misconduct has destroyed my confidence in your ability to be trusted to perform these or any duties in the agency. You are a public-facing employee and are expected to represent the agency,” wrote Sumner. “I have considered your past disciplinary record, your potential for rehabilitation and the adequacy and effectiveness of alternative sanctions to correct your behavior.”
According to Christopher Keeven, attorney at federal employment law firm Shaw Bransford and Roth, the agency’s choice to notify Pelletier of his placement on investigative leave over a week after the change occurred is technically allowable within regulation.
“It does seem contrary to the intent and the explicit language of the act,” said Keeven. “The reality of bureaucracy [is] those types of deadlines are missed quite frequently, and unfortunately there’s not much that can be done. Because the employee is not losing any pay or benefits, it’s not an adverse action or a taking that would trigger any due process right for the employee.”
According to Keeven, Congress passed the Administrative Leave act in 2016 to force agencies to be more judicious about their use of administrative leave, as employees on such leave receive normal pay and benefits without conducting any work.
“It’s clear the intent was ‘these people are getting paid, they should be working,’” said Keeven.
U.S. Code defines investigative leave as applicable when the employee may pose a threat to themselves or others, the employee may destroy evidence related to the investigation, the employee’s presence may result in the loss or damage of government property or the employee might otherwise jeopardize government interests.
The agency must also consider other options to keep the employee working before placing them on such leave.
“I have also, repeatedly, asked SSA management officials for the determination and rationale that must exist (per laws) for SSA to put me on administrative leave. This includes whether SSA considered any other options (reassignment to a different office, having me do non-public contact work, etc…),” Pelletier wrote in an Aug. 13 letter to SSA New York Regional Commissioner Frederick Maurin. “To date, I have not received any explanation as to why I have been deemed too dangerous and have been prohibited from working on behalf of the public as a public servant since July 2.”
According to Keeven, while an employee in this situation may file complaints with various offices, there is no guarantee that such complaints will receive responses.
“They can go to the U.S. Office of Special Counsel, who has the jurisdiction to investigate and prosecute prohibitive personnel practices. The Administrative Leave Act specifically defines the placing of an employee on administrative leave or investigative leave or notice leave as a personnel action subject to OSC jurisdiction. So the appropriate recourse, or one available resource, would be to go to OSC,” said Keeven. “Presumably, the employee might have the option of filing an internal grievance if the agency is violating its own policies and procedures, but every agency has its own grievance procedures.”
Keeven added that a federal union, to which Pelletier belongs, may have greater recourse than an individual in such a situation, depending on the arbitration rights contained in the collective bargaining agreement with the agency.
The soonest SSA would be able to make the decision to fire Pelletier would be Aug. 26.
SSA officials told Federal Times they do not comment on personnel matters.
Jessie Bur covers federal IT and management.