Conviction of a Misconduct Charge

Melville Johnson

April 9, 2020

For a conviction of a charge to occur, the agency must show by preponderant evidence that:

The employee committed certain misconduct
The employee has been convicted in state or federal court, based on the facts underlying the conduct
The conduct is established in the Board proceeding by collateral estoppel. [1]‍

In contrast to a charge based on the conviction itself, this charge involves an instance in which an agency charges misconduct and then relies on a conviction to prove the underlying misconduct. The agency can then use the doctrine of collateral estoppel to preclude the appellant from re-litigating the merits of the charge, as long as the essential elements of collateral estoppel are satisfied. For collateral estoppel to apply: (1) the issue previously adjudicated identical to the issue now presented; (2) the issue was actually litigated in the prior action; (3) the determination in the prior action was necessary to the resultant judgment; and (4) the party precluded was fairly represented in the prior action.[2]

The federal employee attorneys at Melville Johnson, P.C. are highly experienced in MSPB matters such as these, and are willing and able to assist you in your federal employment legal matters. Call or message us today to discuss your claim and learn how we can assist you.

[1] Kroeger v. USPS, 865 F.2d235, 239 (Fed. Cir. 1988).

[2] Raymond v. Dept. of Army,34 MSPR 476 (1987).

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This blog and web site published by Melville Johnson, P.C. should not be used as a substitute for seeking competent legal advice from a licensed professional attorney. Readers of this information should not act upon any information contained on this blog or website without seeking professional counsel.

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(404) 724 - 0000

115 West Peachtree Pl. N.W. Unit 1
Atlanta, Georgia 30313