Administrative Leave: A Prerogative to Meet the Needs of the Service, Not/Not an Entitlement

Posted: 12:37  pm RT
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Unlike the MSPB, the Foreign Service Grievance Board does not identify its precedential decisions but the case below on administrative leave is worth noting whether this is precedent setting or not. In this case, FSGB says that administrative leave is 1) not an entitlement, 2) that it is a prerogative administered by management to meet the needs of the Service, 3) and that Department was not obligated to provide grievant with an explanation for its decision to deny admin leave.

Via FSGB:

Grievant is a Diplomatic Security Service Special Agent who became involved in an altercation with a local civilian while off duty during a temporary duty (TDY) assignment in Honolulu. This incident resulted in the discharge of his service weapon and the death of the civilian. The State of Hawaii brought criminal charges against grievant, and the Department of Justice (DOJ) declined to represent him, finding that the incident was not the consequence of an official act or performance of his official duties.

For unspecified reasons, the Department placed grievant on administrative leave twice: first, in the aftermath of the shooting, when he was under judicial order not to leave Honolulu, and second, during the pendency of his first trial in 2013 (which resulted in a hung jury). Facing a second trial in 2014, grievant asked the Department to place him on administrative leave again. The Department ultimately denied this latter request and upheld its decision in an agency-level grievance.

Grievant acknowledged that under regulation (3 FAM 3464) the Department has discretionary authority to grant or deny administrative leave. He argued that although the Department is not compelled to grant his request, the weight of both equity and precedent suggest that it should do so. He asserted that the circumstances under which the Department earlier took the initiative to place him on administrative leave are substantially the same as those for which he later requested administrative leave (i.e., for his second trial) and arise from the same incident. He contended that if the Department is to “change” its decision regarding whether to grant him administrative leave, it must provide him an explanation of why it did so.

As the instant appeal does not concern discipline, grievant bears the burden of demonstrating that his grievance is meritorious. We found that grievant had failed to demonstrate that the Department had any obligation to approve his request for administrative leave or that it had violated any law or regulation in not doing so. Finally, we found that the facts of this case do not establish that the Department “changed” its decision; rather, the various decisions it made regarding whether to place grievant on administrative leave were separate, independent decisions. The Board concluded that the Department was not obligated to provide grievant with an explanation for its decision to deny AL. The appeal was denied in its entirety.

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