Douglas Factors
This is considered the most important Douglas Factor of the 12
What is DF 1 - the nature and seriousness of the offense?
These are the 4 required elements to have attorney-client privilege
What are (1) a communication, (2) made in confidence/intended to be private, (3) between a client and counsel, and (4) for the purpose of seeking or providing legal advice?
This is a property interest of non-probationary Federal employees and cannot be deprived without due process of law.
What is continued employment in their Federal position?
These Agency officials can expect to be called as witnesses in an MSPB hearing
Who are the Deciding Official, the Proposing Official, and the LER Specialist?
True or False?
An employee must be provided actual copies of all evidence relied on in a proposed adverse action
What is False?
An employee must be given access to the evidence upon request
This management official in the disciplinary process must consider DFs
Who is the Deciding Official?
An example of a circumstance that can break the attorney-client privilege
What is voluntarily sharing privileged information to a third-party?
The basic requirements of Constitutional due process
What are notice, a meaningful opportunity to respond, and the right to appeal?
An Agency cannot file a Motion for Summary Judgment to request a decision without a hearing in this tribunal
What is the MSPB?
The presumption that a notice properly addressed and mailed was received by the addressee
What is the Mailbox Rule?
This is the place where consideration and analysis of the DFs must be documented and considered
What is the Decision Letter?
This is the only person that can waive the attorney-client privilege
Who is the client?
# of days' notice required before an Agency can take an adverse action against an employee
What are at least 30 days?
These documents must be included in the Agency File in response to an MSPB appeal of an adverse action
What are all documents relevant and material to the appeal?
Includes Proposal Notice (and references cited), Reply, Decision Letter (and references cited), Initial/Termination SF-50s, past discipline, evidence relied on
Ways an Agency can meet its evidentiary burden to prove delivery of notice
What are:
Certified mail return receipt, FedEx delivery confirmation, affidavit of personal delivery, written acknowledgment of receipt by addressee, DoD SAFE confirmation of download (in some cases, confirmation of delivery of DoD SAFE notice may suffice)
This DF is not normally considered as aggravating just because the employee "should have known better"
What is DF 4 - Length of Service
A document that is labeled as attorney-client privileged is/is not automatically protected from disclosure
What is is not? The privilege is determined by the content and context of the communication.
An Agency must provide a reasonable amount of time for an employee to respond to written notice of a proposed adverse action, but not less than # days
What is 7?
All emails between management and LER relevant to a case in litigation are discoverable and must be preserved once subject to a _______________
What is a Litigation Hold?
The MSPB will consider prior disciplinary actions up to # years old as aggravating factors
What is 10?
However, this is unofficial. There is no universal rule on remoteness in time for the MSPB.
The MSPB must defer to an Agency's penalty decision when the Agency ________________ and demonstrates its penalty was ___________________
What is when the Agency proves its charges and demonstrates its penalty was within the bounds of reasonableness?
The attorney-client privilege protects communications about facts and events, but does not protect the underlying _____ or ______.
What are facts or events?
One way an Agency can correct a procedural due process problem during the disciplinary process
What is issue a new notice/cure notice of adverse action?
Once in litigation, the attorney-client privilege automatically applies/does not automatically apply to communications between LER and Counsel
What is does not automatically apply?
The communications are protected only when seeking legal advice or guidance
Prior disciplinary actions must be from the current command to be used as an aggravating factor in an adverse action - true or false?
What is false?
Prior discipline from any Federal service could be considered (if not too remote)