Question: “What is a Ward Violation?”
Answer: Without getting too technical, a Ward violation (Ward v. USPS, 111 FMSR 183 (Fed. Cir. 02/17/11) occurs when a deciding official considers information not previously noticed to the employee via the proposal notice. In such an instance, it is a due process violation. This is a very serious deficiency entitling the employee to a corrected adverse action proceeding. It can even result in extensive attorney fee awards (once case resulted in a $300,000 award in 2012).
Most union representatives will instinctively think a Ward violation is equivalent to the deciding official considering a prior disciplinary action outside the proposal notice. This is true. However, it can go further. For example, a deciding official talking to supervisors about a pattern of behavior not noticed to the employee would qualify as a violation. Of course, the existing standard of “new and material” information considered by a deciding official also continues to apply. Typically, the existence of these types of violations only emerge in testimony and it is thus important for a representative to effectively question a deciding official before the judge. Conversely, agency consultants must advise deciding officials to not engage in a Ward violation and limit the scope of their consideration to information expressly contained in the proposed action.
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