Supervisors and managers in the Federal government face increasingly complex challenges that carry large legal risks. Managers must deal not only with pressure from upper management to produce quality work but they must also deal with the risk of complaints from their subordinates if they critique someone for poor performance or discipline someone for inappropriate conduct. These complaints can come in the form of EEO complaints, whistleblower disclosures or even a lawsuit. Fear of the unknown and fear of a possible lawsuit can be a huge disincentive to a federal manager. Unfortunately, that fear can sometimes create an attitude that it is better to avoid confronting a problem employee than it is to risk a lawsuit or administrative challenge to a supervisor's authority. Thus, it is helpful to understand the potential risks and liabilities which can result from counterattacks brought by subordinates or even co-workers. This FREE report deals with some of the risks and liabilities that a Federal manager or supervisor may face. It was produced by Shaw, Bransford, Veilleux & Roth, the premier federal employment law firm in the nation. Tel: (202) 463-8400. Website: http://www.shawbransford.com. 1. What legal actions can be taken against me as a federal manager? As a federal manager, you could be subjected to criminal liability, civil liability, e.g. torts or administrative sanctions. However, the law recognizes that supervisors and managers who are overly worried about a lawsuit can allow that concern to affect their decisions. Thus, important court decisions and legislation provide immunity in many situations so that decisions important to the government can be made without fear of a lawsuit. As a Federal manager, you could be named as a wrongdoer in an EEO complaint, Federal Labor Relations Authority unfair labor practice charge, or grievance filed by an employee. Even the best supervisors and managers sometimes have grievances, EEO complaints or lawsuits filed against them. Thus, you should not consider it a mark of poor supervision if an employee challenges supervisory or managerial authority. Even though you are not personally liable in these administrative proceedings, the agency can still take some adverse action against you, if it finds you were at fault. Only in rare cases can you be held personally liable. You can also be the subject of a complaint by the Office of Special Counsel for any prohibited personnel practices, including whistleblower reprisal which would be filed at the Merit Systems Protection Board. Furthermore, there is also the possibility that you could be the subject of an Office of Inspector General (OIG) investigation. Be advised that OIG investigations could lead to criminal charges be raised against you if the charges are substantiated. If you are called for an interview by either of these offices you should find out whether you are the subject of the interview and if you are, you should seek the advise of an attorney familiar with these procedures. Again even if there are ultimately no charges brought against you, the agency can still take some adverse action against you. 2. For what reasons can an adverse action be taken against me? As a federal manager, you may be subjected to an adverse action as a result of acting with improper reasons and motives in recommending or taking an adverse personnel action. Under some circumstances, you may be suspected of committing a prohibited personnel practice such as illegal discrimination, whistleblower reprisal, providing improper favoritism or injuring the employment prospects of another. An adverse action can also be brought against you if you are suspected of some other misconduct (e.g. misuse of government property, falsifications of documents), unacceptable performance or any other reason that does not promote the efficiency of the service. 3. What rights do I have if an adverse action if brought against me? You will be notified in writing when an administrative action is proposed or taken against you. If the matter concerns relatively minor discipline, such as a letter of warning or written reprimand, you may not hear of the action until you receive it. You may challenge such actions through your agency's administrative grievance procedure. Notice of Proposed Action If more serious discipline is involved, such as a suspension, demotion or removal, you will first be told that such an action is being "proposed," and you will be given time to respond. The proposal letter should set out the basis for each charge, and should tell you the disciplinary action under consideration. The letter should also tell you who is making the decision and how much time you have to respond. If you need more time to respond, you should request, in writing, for an extension of time to respond as soon as possible. Your Rights When you do respond, you have the right to have an attorney represent you, to review the evidence gathered by the agency in support of its proposal, and to gather evidence from all sources, including through the Freedom of Information/Privacy Act requests, and statements from other employees. You have a right to present either a written or oral response to the charges made in the notice of proposal, or both. In adverse action proceedings the agency will not provide you with legal representation. You may represent yourself but you should at least consult with a professional who knows the law and the procedures that are used in these actions. Written Response A written response should include a sworn statement from you, as well as statements from any other witnesses who have information about your case. You should also explain why you disagree with the proposed action, and what other information you believe should be considered as a mitigating factor. These include such things as a long and unblemished career, lack of intent to commit the offense with which you are charged (if intent is an element, as, for example, theft) or other matters covered in the so-called "Douglas Factors." Oral Reply If you choose to present an oral reply, you and your representative will meet with either the deciding official or a representative of the deciding official and explain why you disagree with the proposed action. The agency official may ask you questions which you should answer fully. These are generally information sessions, however, it is possible that the agency will have the session transcribed by a court reporter. Decision The deciding official will issue a written decision which will discuss reasons for the decision and the penalty, if any. The decision letter should also inform you of any appeal rights. Appeal Rights If you are subjected to a severe adverse action (such as removal or demotion because of your improper motivation or improper processing of a personnel action against another employee) you have the right of appeal to the Merit Systems Protection Board if you work in a covered agency and have passed your probationary period. You may also challenge a less severe adverse action (such as a suspension of 14 days or less or a reprimand) through the agency grievance procedures. 4. Can I be sued for things that I do at work? Yes. But as long as you are performing your work as a federal managers, the chances of being sued successfully are not great. It is also likely that the Department of Justice may undertake representing you in the lawsuit. However, that is not a guarantee and thus, you may still have to undergo the expense of litigation. 5. Will my agency protect me if I am sued for carrying out my official duties and responsibilities? As a general rule, managers and supervisors who act within the scope of their employment are absolutely immune from a lawsuit by a subordinate employee. If your agency determines that the matter is most likely related to your employment, you will be advised by your agency of that determination. However, your agency is not obligated to represent you in lawsuits, even it if believes that your conduct is related to your employment. Your agency may choose not to represent you for just about any reason it believes is relevant, for example, if the agency believes that your conduct was embarrassing to the agency or the agency attorney thinks that you are in fact liable, and that you should have to defend yourself. However, the agency usually offers legal representation and very few supervisors are found liable for damages that occur because of acts that he engages in as part of his federal employment. 6. What should I do if I am sued by a subordinate employee or co-worker? Receipt of the lawsuit papers should be reported immediately to the Office of General Counsel at your agency. It is important to act quickly upon receiving the lawsuit papers in order to give your agency and the Department of Justice (DOJ) an opportunity to decide whether to represent you and to respond appropriately to the allegations. Moreover, if the Department of Justice decides not to represent you, it will provide you and your private counsel time to respond. The ultimate decision to represent you in the lawsuit is left to the Department of Justice. You should submit a request to DOJ with the lawsuit papers through your agency for DOJ (1) to certify that you were acting within the scope of your employment and (2) to represent you. Further, even if your agency believes that you were acting within the scope of your employment, DOJ is free to deny representing you or to deny certifying that you indeed acted within the scope of employment. Even if you were acting within the scope of your employment DOJ can refuse to certify you based on the vague standard that it is not in the best interest of the United States to represent you in the pending lawsuit. 28 C.F.R. 50.15(a)(2). The reverse is true as well, even if the agency does not believe you were acting within the scope of your employment, DOJ could still agree to certify you, however, DOJ will often rely on the agency's recommendations. Even if your agency and DOJ refuse to certify that you were acting within the scope of your employment, you can still have a federal court review the facts alleged and determine that you were acting within the scope of your employment. Be advised though that the court does have a right to hold an evidentiary hearing. During this hearing, the court may review evidence and hear testimony regarding the limited issue of whether the conduct alleged fell under the scope of employment. Whether it falls within the scope of your employment is determined by the law of the state. If the district court determines that you were acting within the scope of employment, the judge can then certify you. Your attorney would then move the court to remove your name from the complaint and have the United States be substituted in your place. You may still have to appear as a witness but you would not be liable for any damages that the plaintiff might win the case against the federal government. Thus, your first avenue should be to request that DOJ certify that you were acting within the scope of your employment and represents you. If they deny certification, you can petition the federal court to conduct an independent review and certify that you were acting within the scope of your employment. However, if the court denies your petition you will have to obtain private counsel. 7. What steps can I take to avoid having actions brought against me? While there are certainly some risks, a well-documented, properly motivated case against a problem employee will seldom pose any real threat to the supervisor or manager. (For tips on how to document your case and prevent claims against you see The Federal Manager's Guide to Liability and The Federal Manager's Handbook: Rehabilitating or Removing the Problem Employee.) Furthermore, if you asked to be interviewed by your agency's Office of Inspector General or by the Office of Special Counsel, it is advised that you have your attorney accompany you on the interview to ensure that you are not asked any questions which could be incriminating. 8. How do I begin to document a case? When you start documenting a case, you should retain all important written evidence of employee performance or misconduct. This includes evidence showing that misconduct occurred or performance was poor, as well as evidence proving the action taken by the agency and the underlying justification for the action. You can start by drafting a written memorandum to the file after each meeting that you have with a problem employee which details what occurred at the meeting. If there is misconduct involved you should ask all employees with significant information regarding the misconduct to prepare similar memoranda. You can also keep notes on a desk calendar regarding an employee's tardiness or absence or to record a meeting. This type of system should be kept for all employees not just a "problem" employee. You can also keep a log book on employees or a "drop" or "supervisory" file. Some collective bargaining agreements require that such notations, log books, etc. be provided to the employee when made. All these notes and memoranda should be objective reports of incidents, conversations or encounters rather then subjective or personal observations or remarks about the employee. Remember that a personnel action that is done right will seldom result in the supervisor's exposure to personal or professional liability. 9. Are there any other precautions that I can take to avoid a significant expense of attorney's fees? There is at least one insurance agency (Wright & Co. 1-800-424-9801 or 202-289-0200) in the Washington, D. C. area that provides liability insurance for federal managers to protect against loss for damages that resulted from actions in the performance of official duties. If the Department of Justice does not represent you, an attorney selected by the insurer will be available to help the DOJ and you. An attorney fee or legal defense rider is provided as a supplement to the professional liability policy. The rider covers legal fees you may incur in an administrative or criminal investigation as a result of charges of misconduct (or a criminal act) arising from an act, error, or omission you may have committed as a federal employee or manager. This is only a brief summary of the things you should be aware of if you are the subject of an investigation, an adverse action or party to a lawsuit. It is advisable to contact an attorney as soon as possible to fully understand your legal rights.

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