WRITING CHARGES

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WRITING CHARGES

• LARRY ABLES
• VETERANS AFFAIRS

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WRITING CHARGES

• Charge or Label
• Elements
• Specifications

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CHARGE/LABEL

• The labeling of the act(s) of misconduct an
  employee is accused of committing.
• Not required but failure to do so leaves the
  interpretation of the charge up to the reader

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The Charges Label

• Charge is often used interchangeably with
  Label
• Shows what the agency thinks it charged
• The efficiency of the service
• Once labeled, that label must be proved
• Definitions of legal or criminal terms must be met

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CHARGE/LABEL

• Failure to Follow Leave Instructions
• Unauthorized Absence
• Sleeping on Duty
• Inappropriate Conduct

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ONE INCIDENT CAN SUPPORT MORE THAN ONE CHARGE

• Falsely claiming you were sick on 8/29/90
• Unauthorized Absence on 8/29/90
• Penalty Determination
• Jackson v Navy 91 FMSR 5718

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MERGED CHARGE

• Use of government property for other than
  official purposes
• Violation of administrative rules and regulations
• Penalty Determination
• Barcia v Army 91 FMSR 5718

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ELEMENT

• What must be proven
• Unless all the elements of a charge are proved,
  the entire charge will fall

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MORE THAN ONE ELEMENT

• Directing the unauthorized use of Government
  materials, manpower, and equipment for other than
  official purposes
• Burroughs v Army, U.S. Court of Appeals, 918 F.2d
  10/31/90

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MORE THAN ONE ELEMENT

• Insolent, insubordinate, and threatening behavior
• Roseberry v VA, MSPB SE07529010619, 11/18/91

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CHARGE

• The charge and all of its components should meet
  the reasonable person test

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The Specification

• Generally follows the charge
• It need not be proven in its entirety
• If it is not intended to be proven, it doesnt
  belong in the specification
• Provides the who, what, when, where
• There should be a separate specification for each
  charge

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SPECIFICATION

• A description of the event that gave rise to the
  charge(s).
• Must be clear to the accused employee

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SPECIFICATION

• On July 5, 2002 you were scheduled for duty. You
  failed to report for duty and did not receive
  leave approval.
• On May 15, 2002 missing government property was
  found in your vehicle by security personnel. You
  did not have authorization to possess the
  property.

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ONE CHARGE - SEVERAL SPECIFICATIONS

• Charge Off duty misconduct
• Specifications
• Harassing one woman both by phone and in person
• Threatening a second woman with abusive phone
  calls
• Physical assault of a third woman.

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Common Charge Problems

• Including the result in the charge
• If included -- the result must also be proven
• Pulling something out of the penalty guide

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Common Charge Problems (contd)

• Overwriting
• Use of adverbs and adjectives
• Specification does not support the label

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Problem Charges
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Problem Charges

• Third parties use two references for word
  meaning. If a specific legal term is used
  meaning, the definition in Black's Law Dictionary
  will apply .

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Problem Charges

• If a non-legal word is used, third parties will
  apply the definition found in Webster's
  Unabridged Dictionary, 2nd Edition and only to
  the plain meaning of the word will apply.

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INTENT

• Ones mental attitude, including purpose, will,
  determination, etc., at the time of doing an act
• Intent must be derived inferentially from
  circumstantial evidence, and all of the evidence
  must be considered

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DESCRIBING CHARGES

• ASSAULT
• Willful attempt to inflict injury upon another
• An apparent ability to do so and
• An intentional display of force which gives the
  victim reason to fear bodily harm
• Spearman v USPS, MSPB SF07528910197, 3/6/90

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DESCRIBING CHARGES

• THEFT
• Proof of intent to permanently deprive the owner
  of possession and use of property
• Nazelrod v DOJ, US Court of Appeals, Fed Cir
  93-3017 12/27/94

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THREAT

• Listeners Reaction
• Listeners Apprehension of Harm
• Speakers Intent
• Conditional Nature of Statements
• Attendant Circumstances
• METZ vs. TREASURY

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ALTERNATIVE CHARGES

• THEFT
• THREAT
• ASSAULT

• UNAUTHORIZED POSSESSION
• INAPPROPRIATE CONDUCT
• STRIKING AN
• EMPLOYEE

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ALTERNATIVE CHARGES

• INSUBORDINATION
• ABANDONMENT OF DUTIES
• LYING

• FAILURE TO FOLLOW INSTRUCTIONS
• AWOL
• PROVIDING INACCURATE INFORMATION

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Charges Related to Injured Employees

• Failure to follow instructions
• Failure to accept a reasonable work assignment

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CHARGE

• A statement of the specific charges upon which
  the proposed action is based, including names,
  dates, places, and other data sufficient to
  enable the employee to fully understand the
  charges and to respond to them

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CHARGE

• A statement of any specific law, regulation,
  policy, procedure, practice or other specific
  instruction that has been violated, as it
  pertains to each charge (if applicable)