When a Federal Agency has difficulty determining which charge to use when disciplining a federal employee, they will likely decide on the charge of Conduct Unbecoming a Federal employee. This is a generic label charge that federal agencies use for disciplinary actions that cover a wide range of misconduct.
In order to prove the charge of Conduct Unbecoming a Federal employee at the Merit Systems Protection Board (MSPB), the employer must prove that the act in the underlying specification(s) happened as described in the disciplinary action notice. This must be proven by preponderant evidence, which means that it is more likely than not to have happened as described.
The Agency must show that the employee: (1) committed the misconduct as alleged; and (2) that the conduct was improper or that it detracted from the federal employee's character or reputation.
Because the charge of Conduct Unbecoming a Federal employee is so broad, the most effective way to challenge the charge is to dispute the facts in the specification(s) supporting the charge as described in the agency's proposed disciplinary action notice or decision. If the facts can be disputed with sufficient evidence, the agency will be unable to uphold the charge. Another possible defense is to argue that the charge was too vague. This goes to the very core of the Conduct Unbecoming charge itself.
Because the charge is so broad, federal agencies tend to rely on it when there is not much evidence to justify other more specific charges by preponderant evidence. You can use this to your advantage by providing rebuttal evidence and arguing that the agency has insufficient evidence to sustain the charge.
The federal employee attorneys at Melville Johnson, P.C. are highly experienced in MSPB matters such as these, and are willing and able to assist you in your federal employment legal matters. Call or message us today to discuss your situation and learn how we can assist you.