Saturday, February 07, 2015

ex parte communications by a deciding official

Any such discussions would have to comply with the dictates of due process, as required by Stone, that no disciplinary action be taken based on new and material evidence that is not provided to the employee so that the employee has an opportunity to respond.

PPP2, 5 USC 2302(b)(2) should not be confused with the prohibition against ex parte communications in disciplinary personnel actions; they are distinctly different.  An ex parte communication to a deciding official is a communication, without the knowledge of, and opportunity to respond by, the employee being disciplined and it has the effect of denying him the due process to which he is entitled under the Constitution. Sullivan v. Department of the Navy, 720 F.2d 1266, 107-74 (Fed. Cir. 1983).

 In disciplinary action cases, the prohibition against ex parte communications would prevent these communications in most instances, where the information is not otherwise known, or made known, to the employee prior to making a decision to effect a disciplinary action.

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