“My agency proposed I be indefinitely suspended under the ‘crime provisions.’ What is that?”
Office of Personnel Management (OPM) regulations (5 CFR 752.402(e)) permit agencies to place employees on indefinite suspension pending completion of investigation or criminal proceedings when the agency has cause to believe the employee committed a crime for which the employee could be imprisoned. In using this procedure, however, agencies must meet the “reasonable cause” standard of the Merit Systems Protection Board, and must terminate the suspension upon completion of the event identified when imposing the suspension.
“Crime Provisions” is Actually Indefinite Suspension
Indefinite suspension is the placing of an employee in a temporary status without duties and pay pending investigation, inquiry, or further agency action in connection with a criminal proceeding affecting a federal employee. The indefinite suspension continues for an indetermined time and ends with the occurrence of the pending conditions set forth in the notice of action that may include the completion of another action (i.e., criminal trial).
Burden of Proof in Crime Provisions
To indefinitely suspend an employee on the basis he or she may be imprisoned (crime provisions), an agency must be able to prove 1) it has reasonable cause to believe the employee has committed a crime that could result in imprisonment; 2) the agency provided a suspension terminating event (e.g., completion of its investigation) in its notice of suspension. When imposing an indefinite suspension based on a belief that an employee has committed a crime for which he may be imprisoned, the agency must establish nexus and prove the penalty is reasonable.
- A reversal of criminal charges is not enough, by itself, to undermine the basis for an indefinite suspension.
- An arrest, by itself, does not provide valid basis for reasonable cause.
Meeting Reasonable Cause Standard
Law enforcement authorities will often conduct investigations involving employees. These investigations, like it or not, may serve as a basis for meeting the reasonable cause standard thus triggering the ability of the agency to indefinitely suspend the affected employee. For example, reasonable cause may be established on the basis of information already developed by the agency, an ongoing investigation by a local law enforcement authority, and/or referral of a theft-related charge for possible criminal prosecution. Also, the Agency is allowed to draw an adverse inference from an employee’s invocation of the Fifth Amendment during its investigation; thus providing reasonable cause to the Agency.
- Criminal indictment will provide a valid basis for reasonable cause to trigger an indefinite suspension. Smith v. Government Printing Office (MSPB 1994).
- Accepting a case for prosecution by a U.S. Attorney provides sufficient basis for reasonable cause to trigger an indefinite suspension. Bell v. Department of the Treasury (MSPB 1992).
- An agency may continue an employee in a non-pay status if it immediately follows an indefinite suspension with a subsequent adverse action. Hernandez v. Department of Justice (MSPB 1987).
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