There is still a material misunderstanding among even the most long-term and knowledgeable federal workers that they could lose their retirement (annuity) if they are fired, and so they think they must resign or retire before being fired to preserve their retirement benefits. Wrong. Here’s how I hear it generally plays out. A federal employee is told by human resource and/or management that a proposed removal is about to issue and that he/she could resign to avoid being fired for cause. Sure that’s true, and doing so (resigning) has very little practical value, but that’s for another column. Somehow, the…

In the past year, the U.S. Merit Systems Protection Board (MSPB) has issued several decisions reversing an agency’s adverse action against an employee because the agency failed to follow its own adverse action procedures. Not every instance in which an agency fails to follow its own action will result in reversal. Rather, those instances in which the failure to follow the internal agency procedure results in “harmful error.” Most if not all agencies have internal procedures for taking an adverse action. Those procedures mostly mirror and then build upon the governmentwide statutes and regulations proscribing the taking of an adverse…

Q: I am CSRS, FAA, 55, and fully eligible to retire. If there were to be a memo proposing disciplinary action (something serious like an adverse action as a huge suspension or removal), is there anything that prevents me from just retiring at that time? Or can my retirement papers be denied and I get fired? I have no disciplinary past. A: A proposal to suspend or remove a federal employee is just that: a proposal. The agency is required to grant the employee a reasonable amount of time to respond, both in writing and orally, to the proposal, and…

Debra L. Roth is a partner at the law firm Shaw Bransford & Roth in Washington. She is general counsel to the Senior Executives Association and the Federal Managers Association, host of the “FEDtalk“ program on Federal News Radio, and a regular contributor to Federal News Radio’s “Federal Drive” morning show. Email your legal questions to lawyer@federaltimes.com.  The VA took a firm public position that despite the special firing authority Congress passed last summer, VA senior executives retained a constitutional right to their jobs and thus were entitled to pre-termination due process. Then, VA litigated the opposite position before an…

Q: In November 2013, I sent my local US Representative a Privacy Act Release and with a letter, I asked him to send to OPM for a letter regarding my retirement.  I did not receive a response to that letter.  I subsequently sent him additional letters to send OPM.  In these letters to OPM, I specifically stated for them to send all correspondences to me regarding my retirement.  I had been trying to get OPM to issue decisions on the type of retirement and other annuity issues.  I know once you received a decision from OPM you only have 30…

Q: Are disciplinary actions, such as letters of warning, carried over once you are converted to permanent status from a term status position? Or are you afforded a clean slate? A: Letters of warning (and letters of counseling) are not considered disciplinary actions.  That being said, the purpose of a letter of warning is to inform employees of what the agency’s rules and policies are on a given matter, and to inform the employee that if the rules are violated in the future, an actual disciplinary action could be taken.  In the future, if you are accused of violating the…

Q: Can a federal employee plead the 5th rather than say “I didn’t do it” or “I don’t know” in an interview with the Office of the Inspector General or management? A: In an interview, you can state that you do not remember, or that you do not know the answer to the question whenever that answer would be truthful, but it must be the truth. Regarding your question about when you have a right to remain silent pursuant to the Fifth Amendment, the Fifth Amendment states that:  “No Person . . . shall be compelled in any criminal case to be…

I’d be remiss in my role as the columnist charged with offering legal advice to readers if I did not close 2014 with advice on the obtuse and cumbersome rules governing gift-giving. So, to do so, I went back to a column written by Bill Bransford, my predecessor columnist. By way of introduction, I remind readers that the rules governing gift-giving by or to executive branch employees are issued by the Office of Government Ethics. Those regulations are complex, cumbersome, with generally stated prohibitions followed by lists of exceptions. And yes, Congress is exempt from these rules. You can find…

Federal workers are fortunate. They have several legally defined processes available to them to complain about workplace treatment, theoretically free from reprisal. Most employees in the private sector have none. For complaints made by employees in the private sector regarding hours of work, office location, a work assignment, or a colleague or supervisor who is treating you disrespectfully, the usual response is: “If you’re not happy here, you can leave.” Feds have multiple processes and forums to lodge workplace complaints. One such process, the administrative grievance process, has been viewed poorly by feds in the past. But I think it…

Q: I’ve been waiting three weeks for a Department of Defense (“DoD”) DOS Security Clearance/Secret. Is this a normal amount of time? A: Three weeks is not an unusual length of time for a Department of Defense (“DoD”) security clearance adjudication. The Intelligence Reform and Terrorism Prevention Act (“IRTPA”) of 2004 required the Office of the Director of National Intelligence (“ODNI”) to annually report on the processing times for security clearances through February 2011. As part of its IRTPA Annual Report for 2010, the final and most recent ODNI issued under IRTPA, ODNI reported the average initiation, investigation, and adjudication processing…

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