What is a Ward Violation
A Ward violation (Ward v. USPS, (Fed. Cir. 02/17/11) occurs when a deciding official in a personnel action considers information not previously disclosed to the employee. In such an instance, it is a due process violation. This is a very serious deficiency that may entitle the affected employee to a corrected adverse action proceeding. It can even result in extensive attorney fee awards (one case resulted in a $300,000 award in 2012).
Most union representatives will instinctively think a Ward violation is equivalent to the deciding official considering a prior disciplinary action outside the proposal notice. This is true in some instances. However, it can go further. For example, a deciding official talking to supervisors about a pattern of behavior not noticed (provided) to the employee may qualify as a violation.
Of course, the existing standard of “new and material” information considered by a deciding official also continues to apply. The existence of these types of violations typically emerge in testimony. It is important for a representative to effectively question a deciding official. This questioning typically manifests before the judge when obtaining testimony. Knowing something and proving it are two different things. Conversely, agency employee labor relations consultants should advise deciding officials not to engage in a Ward Violation. This can be accomplished by limiting the scope of their consideration to information expressly contained in the proposed action and evidence file.
Invest Your Time Wisely
It is important the affected employee and his or her representative carefully read the proposal and review the associated evidence file. If there is reason to believe the deciding official considered substantive information not disclosed to the affected employee in the evidence file or proposed notice, efforts should be made to develop proof. However, such efforts should be commensurate with the substance and expected return. Not every situation will result in a tangible benefit.
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