MSPB Reminds Agencies They Don’t Need Airtight Proof to Get Suspected Criminals Off the Payroll

The Merit Systems Protection Board is reminding federal agencies that they can indefinitely suspend without pay employees suspected of crimes.

Agencies do not by law have to wait for a criminal indictment, or actual conviction, to temporarily take workers off the payroll if they have “reasonable cause” to believe the employees committed a crime that could carry jail time.

“The agency may opt [emphasis in original] to wait for an investigation to be completed by an inspector general or other investigator in order to provide the deciding official with more information or evidence,” said a three-page MSPB “studies flash” released Tuesday. “While officials can choose to wait for an investigation to be completed before proceeding with the indefinite suspension, that is a choice, not a requirement.”

Rarely does a day go by when some government agency isn’t in the news for keeping suspected criminals (and in some cases, convicted criminals) on the job during an investigation, or on paid administrative leave. It’s happened at the Environmental Protection Agency, Homeland Security Department and Veterans Affairs Department, to name a few.

MSPB, the small federal agency that adjudicates appeals of “adverse personnel actions” from federal employees who have been fired, suspended, furloughed, demoted or had their pay cut, noted that the affected employee could ultimately appeal a suspension of more than 14 days, but emphasized that the agency must prove a reasonable cause to believe that the employee committed a crime, “not guilt of the alleged crime.” The agency also pointed out that an indefinite suspension without pay is a separate personnel action from removal. Often agencies wait to fire employees until they’ve been criminally indicted or convicted, but MSPB reminds them that there is an interim step they can take that doesn’t require input from the courts.

“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. “What matters is the record that the officials had before them when they put the action into effect [emphasis in original]. Additionally, it is not necessary that the agency form a belief as to whether the employee will be imprisoned, only that such imprisonment could [emphasis in original] be imposed.”

The reasonable cause threshold necessary for indefinite suspensions without pay in such cases is lower than the “preponderant evidence” threshold that agencies have to meet when they fire an employee. “The indefinite suspension without pay pending resolution of a criminal matter is considered a separate personnel action from a removal underlying criminal conduct and each type of action follows different rules,” MSPB said.

MSPB has been on an education campaign in the last year to clear up misconceptions associated with adverse personnel actions, and employee due process rights. Tuesday’s primer isn’t the first time MSPB has tried to remind agencies of their options when it comes to employees suspected of criminal behavior: A 2015 report pointed out that agencies can fire employees suspected of a crime without waiting for actual criminal charges to be filed. But agencies do not want their personnel decisions overturned on appeal (for many reasons), so they tend to move slower to remove employees at the beginning of the process.

A recent case involving Elizabeth Rivera, a VA employee who was fired for her role in an armed robbery, and later pleaded guilty to two misdemeanors, is a good example of why agencies don’t take decisive action sooner. Rivera got her job back after winning an MSPB appeal.

Of course, it’s important to note that criminal prosecutions or convictions do not necessarily disqualify individuals from federal employment. In reference to the Rivera matter, David Shulkin, VA undersecretary for health, told lawmakers: “As is true in private-sector employment, a federal employee generally cannot be terminated for off-duty misconduct unless there is a clear connection between the misconduct and the individual’s employment.”

In April, the Office of Personnel Management issued a proposed rule that would ban agencies from issuing any forms that ask about applicants’ criminal backgrounds until hiring officials assess the candidates’ merits.