Editor’s Note: This sponsored column is written by Mathew B. Tully of Tully Rinckey PLLC, an Arlington firm that specializes in federal employment and labor law, security clearance proceedings, and military law.
Q. Can my federal agency remove me because I was arrested for drunk driving?
A. Agencies should not treat federal employees as though they are guilty until proven innocent. To do so would effectively deny employees of their due process rights. As a Merit Systems Protection Board (MSPB) administrative judge noted in John B. Richardson v. Department of the Interior (2006), “an agency cannot base a removal action upon a charge of arrest.”
However, it might be a different story if the agency based the removal action on a driving while intoxicated (DWI) conviction. The administrative judge in Richardson added that “charging an individual with being subjected to an arrest… without charging the underlying misconduct or conviction… cannot substantiate a charge of misconduct, because they are premised solely on accusations by the alleged victim and district attorney, rather than evidence showing that the charged conduct occurred.”
While an agency may not be able to remove an employee solely because he or she was arrested for DWI, it may try to indefinitely suspend him or her without pay while a criminal case is pending or if a conviction on whatever was charged could result in imprisonment. Depending on the circumstances, the agency may give the employee seven to 30 days advanced notice of an indefinite suspension.
Just because an agency cannot remove an employee on the grounds of a DWI arrest alone, does not mean he or she is immune to removal actions. Much depends on what the employee does or does not do after the arrest. In Donald W. Roby v. Department of Justice (1993), the Board said an agency could remove an employee who had been arrested for DWI for failing to follow a supervisor’s instructions and concealing facts pertaining to a DWI charge’s disposition, along with absence without leave (AWOL). The Board noted that these two offenses constitute “serious misconduct,” which is punishable by removal.
If an agency attempts to remove an employee who was convicted of DWI — and he or she is an alcoholic — this adverse action may not constitute unlawful discrimination. In Paul R. Overstreet v. Department of the Interior (2007), an MSPB administrative judge said, “disability discrimination based on alcoholism does not shield Federal employees from uniformly applied discipline for breaches of the public trust of sufficient severity and type to disqualify them from Federal public service or service in their position.”
He added that “where criminal or other serious misconduct relates directly to a fundamental requirement of his position, the employee is no longer otherwise qualified, and the discipline imposed cannot reasonably be regarded as [disability] discrimination.”
Federal employees who have been arrested for DWI and are facing removal or indefinite suspension should immediately contact a federal employment law attorney.
Mathew B. Tully is the founding partner of Tully Rinckey PLLC. Located in Arlington, Va. and Washington, D.C., Tully Rinckey PLLC’s attorneys practice criminal defense, matrimonial and family law, federal employment law, and military law. To speak with an attorney, call 703-525-4700 or to learn more visit 1888law4life.com.
The views and opinions expressed in the column are those of the author and do not necessarily reflect the views of ARLnow.com.
