Indefinite Suspensions: When Employees Engage in Criminal Conduct
By Deborah J. Hopkins, April 29, 2024
An indefinite suspension means placing an employee in a temporary status without duties and pay for an indeterminate period of time. An agency may indefinitely suspend an employee for three reasons only:
- The agency has reasonable cause to believe an employee has committed a crime for which a sentence of imprisonment could be imposed;
- The agency has legitimate concerns an employee’s medical condition makes his continued presence in the workplace dangerous or inappropriate; or
- The agency has suspended the employee’s access to classified information and the employee is required to have access in order to do his job.
Sanchez v. DOE, 117 M.S.P.R. 155, ¶ 10 (2011).
This is the first in a series of three articles, each focusing on one of the above categories of indefinite suspensions. Our focus today is on the first — and indefinite suspension because the agency has reasonable cause to believe the employee has committed a crime that could result in imprisonment.
I’ve set this up as a Q&A, based on the questions we receive during our trainings on the topic. And, by the way, we’ll discuss indefinite suspensions in more detail on May 14 during the class All Clear? When Employee Security Clearances are Revoked or Suspended.
What proof does an agency need to justify an indefinite suspension over possible criminal activity?
The four elements the Board looks for when it reviews indefinite suspensions based on potential criminal activity are:
(1) The agency has reasonable cause to believe the employee committed a crime for which a term of imprisonment may be imposed;
(2) The suspension has an ascertainable end (in this case a conviction, dismissal of charges, or completion of the investigation);
(3) There is a nexus between the criminal conduct and the efficiency of the service; and
(4) The penalty of indefinite suspension is reasonable.
Dalton v. DOJ, 66 MSPR 429, 435 (1995); see also Smith v. GPO, 60 MSPR 450 (1994); Johnson v. USPS, 37 MSPR 388 (1988).
Note that these are the elements the agency must prove by preponderant evidence if the employee challenges the indefinite suspension before the Board, which has jurisdiction if the indefinite suspension is longer than 14 days. None of these elements requires proof related to the actual crime at issue.
How does an agency show it had reasonable cause to believe the employee committed a crime that might result in imprisonment?
The MSPB has issued guidance on this (Indefinite Suspensions and Potentially Criminal Behavior: Using Reasonable Cause to Act) and says:
Often, a criminal indictment is used to establish this reasonable belief. However, an indictment is not specifically required to invoke the crime provision, only reasonable cause for belief that a crime (serious enough to permit possible imprisonment) has been committed. The agency is not required by law to wait for an indictment.
However, be cautious. A arrest alone is insufficient to prove reasonable belief; the agency must have some other supporting evidence that the employee has committed a crime. Larson v. Navy, 22 MSPR 260 (1984).
If the employee is acquitted or the criminal charges are dropped, what are the agency’s options?
The agency has two options:
1. Return the employee to duty. You might be surprised to learn that if the employee is not convicted, or of the conviction is overturned on appeal, the suspension is still valid for the period of time that the agency held its reasonable belief the employee committed the crime. In other words, the employee has no entitlement to back pay for the indefinite suspension. Jarvis v. DOJ, 45 MSPR 104 (1990).
2. Take an administrative (disciplinary) action. Even if there is not a conviction, the agency can discipline – and even remove – an employee for the underlying conduct, as long as it can show a preponderance of the evidence the employee engaged in misconduct, there is a nexus between the conduct and the efficiency of the service, and that the penalty is reasonable. Frederick v. DHS, 122 MSPR 401 (2015). This is because the standard of proof in misconduct cases is a preponderance of the evidence, which is much lower than the evidence beyond a reasonable doubt required in criminal cases. 5 CFR 1201.56(c); 5 CFR 1201.4(q).
If the agency believes the employee committed a crime, must it wait to remove the employee until criminal charges are filed?
No. The agency is permitted to remove the employee without waiting for criminal charges to be filed, as long as it has the required proof to take a disciplinary action, as discussed in part two of the question above. If the employee appeals the removal and criminal charges are filed at some point pending appeal, then MSPB may elect to stay its proceedings until the conclusion of the criminal case. If a stay is issued, the appellant does not come back to work during the pendency of the criminal case; he remains off the payroll. Wallington v. Treasury, 42 MSPR 462 (1989).
One note on charging: Do not use the same label as a potential criminal charge, but rather charge the underlying misconduct.
Well, that does it for this Q & A on indefinite suspensions. Next time, we look at the second reason an agency may indefinitely suspend an employee – because a medical condition renders it unsafe for an employee to be in the workplace.
