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 Number 137 September 2000 COURT DECISIONS | FLRA | MSPB MSPB DECISIONS DUE PROCESS ... EX PARTE COMMUNICATIONS ... HARMFUL ERROR Daniel Powers v. Department of the Treasury, BN-0752-99-0048-I-1, July 5, 2000 Holding Ex Parte information considered by a deciding official is not material when it does not warrant a different outcome and therefore does not require reversal. Summary Mr. Powers' removal was based on a number of charges, including periods of AWOL. On appeal, he claimed the misconduct underlying the charges was caused by his depression and the action therefore constituted disability discrimination. The administrative judge (AJ) rejected this claim, but reversed, raising sua sponte the argument that the agency violated the appellant's constitutional due process rights by considering ex parte communications about his post-proposal instances of AWOL. Relying on Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1375 (Fed. Cir. 1999), the AJ found Mr. Powers was not given notice or an opportunity to respond to this information, and this constituted an inherent violation. The agency argued that the AJ could not raise the Stone defense sua sponte. It further claimed the information in question was not "new and material," any consideration of the additional evidence was not harmful, and consideration of the post-proposal conduct arose from the wholly proper assessment of the appellant's claim of rehabilitation. Upon review, the Board rejected the first argument, but agreed that the AJ had misapplied Stone. Stone holds that ex parte communications to a deciding official are a constitutional violation when they introduce "new and material information." However, the Board found the court's discussion and its own precedent instruct that evidence is only "material" if it is of sufficient weight to change the likely outcome. Here, the appellant's admissions of the charged misconduct, his prior discipline, and his leave restriction status made it likely in the Board's view that the deciding official would have sustained the charges in the absence of the ex parte communication. In a footnote, the Board addressed the agency's claim that it could consider post-proposal misconduct because the appellant was claiming to be rehabilitated. It found no evidence of such a claim in the record. In another footnote, the AJ was instructed that on remand, he may consider whether the ex parte communication had an improper effect on the penalty. Comments This is one in a line of Board cases applying and interpreting Stone. The Board has made it clear that ex parte communication is a basis for reversal only where it is likely to have influenced the basic decision to uphold discipline. Where the information could have affected the penalty, it may result in mitigation. Since such findings about the impact of any particular communication are judgement calls, agencies will not want to over-rely on these distinctions. When relevant new information is provided a deciding official, he or she should be advised it is both fair and prudent to give notice to the employee and consider any response he or she cares to make. Agencies having general questions concerning this publication, including suggestions for improvement, are encouraged to call Hal Fibish on (202) 606-2930. |