A statement that the notice is being issued in accordance with the provisions of 5 CFR 752, IRM 6.752 and appropriate regulations.

The specific action proposed, i.e., removal, reduction in grade or pay, suspension for more than fourteen (14) days, etc. Caution should be exercised in deciding on the specific action proposed since the decision cannot impose a more severe penalty than originally proposed. However, the courts have held that a less severe action can be imposed.

A statement that it is proposed to take such adverse action no earlier than thirty (30) calendar days from the date of receipt of the proposed notice. The law requires at least thirty (30) full calendar days for the minimum notice period. ln computing the minimum thirty (30) full calendar day notice period, the day on which the notice is delivered should not be counted since it is not a full day. Since a removal is effective at 12:00 midnight (unless otherwise specified), it may be effected on the thirtieth (30^th) day of the notice period. All other adverse actions, effective 12:01 a.m., may be effected on the day after the final day of the notice period. Note, however, that if the thirtieth (30^th) day of the notice period is a Saturday, Sunday, or legal holiday, the notice period is extended to include the next business day. The thirty (30)-day notice period is an absolute minimum, but a longer period may be used between the date of receipt of the proposed notice of adverse action and the effective date of the action.

The specific reasons relied upon to support the proposed adverse action. However, it need not cite every reason that might have been used to support the action. After the issuance of the notice of proposed adverse action, no reference may be made to reasons not cited. The reasons must be specific enough to provide a fair opportunity for refutation.

The reasons must reflect some recognizable offense. Generalized conclusions or accusations, which fail to cite specific identifiable offenses, will not meet the test of specificity. The notice of proposed action should embody the specific reasons(s) supported by detailed specifications. In citing reasons, care must be taken to insure that each fits the facts and identifies exactly what the employee did that was wrong or improper. In this connection, it is appropriate and desirable to cite the conduct rule of the IRS, Office of Government Ethics (OGE) Regulations, Department of the Treasury, or other written procedures or instructions which the conduct violated. However, such citations should be exactly and directly applicable to the facts in the case. If not absolutely applicable, they should not be used. Care must also be exercised to insure that the citation existed at the time the offense occurred. The absence of a specific published rule of conduct covering the misconduct does not mean that such action is condoned or permissible.

In citing the reason for the adverse action, avoid the pitfalls of inappropriate reasons or language. Subjective value judgments (such as "immoral conduct" or "irresponsible act" ), unnecessary modifiers (such as "gross" negligence or "clearly" demonstrates), and Iegalisms generally should be avoided. "Pyramiding" reasons, i.e., the use of separate reasons based on the same incident (unless two clearly distinct offenses are involved) must also be avoided. The reason should refer to personal conduct of the employee, i.e., what the employee actually did, except in the case of an indefinite suspension under the crime provision, where the reason may be the fact of an indictment or other legal procedure (see 6.752.2.7.2).

Each reason and specification for the proposed action must be clearly shown. It must show specifically what the employee did that was wrong and why it was wrong. All the specifics and circumstances surrounding the alleged improper conduct should be cited. At a minimum, there should be as clear an identification as possible of the alleged action(s) in terms of location, time, persons directly involved (not witnesses) and specific acts or actions. Some examples of specifications follow:

The Merit Systems Protection Board, in Curtis Douglas et al. v. Veterans Administration et al., identified a number of factors that are relevant in determining the appropriateness of a penalty (see 6.752.2.7.6). The factors may also be pertinent to other issues, such as the relationship of the employee’s conduct to the efficiency of the Service (nexus). In off-duty misconduct cases, the nexus must be stated in the proposed adverse action. In addition, to the extent that any of the factors, form a reason for proposing adverse action or constitute aggravating circumstances and are a consideration in proposing an enhanced penalty (i.e., a more severe penalty than would be the case in the absence of the aggravating circumstances), they must be included in the letter.

When the reason is non-disciplinary, cite the specific reasons, including any offers made to avoid or minimize the adverse action. The employee’s response to such offers should be cited particularly when separation or demotion results from "failure to accompany activity or function" in transfer of function situations, or an employee refuses to accept reassignment to another commuting area.

A statement that the employee has a reasonable time [fifteen (15) calendar days] in which to answer orally and in writing and to submit affidavits. A request for an oral reply must be received within seven (7) calendar days from receipt of letter of proposed action. In instances where the employee requests a reasonable extension of time within this period to submit an oral or written reply, the extension may be granted upon a determination of the validity of the reasons. (If appropriate, refer to the applicable negotiated agreement.)

The name of the official the employee should contact if the employee desires consideration of a medical condition which may have contributed to the cause of the proposed adverse action. (See Exhibit 6.752.2-2 for a sample letter which can be used to notify the employee of documentation to be submitted.)

The name of the official to whom any written reply should be sent (usually the proposing official), the address to which it should be sent, and, if an oral reply is desired, to whom a request for an oral reply should be sent.

A statement that the employee has a right to be represented by an attorney or other representative.

A statement concerning the employee’s status during the notice period.

A statement concerning the employee’s right to have or review the material relied on, and from whom it should be requested or where it may be reviewed. The employee, upon request, will be furnished a copy of all or any part of the material. The supporting material available to the employee includes all material on which the proposal was based and which is relied on to support the reasons. If there is tax return information in the material relied on, disclosure restrictions should be included. (Information will be contained in IRM 6.751 which will be published at a future date.)

A statement as to how much official time will be allowed, providing the employee is on official duty status, to review the supporting material, to secure affidavits, and to prepare the reply to the notice of proposed adverse action, and the official (and official’s address) from whom the official time should be requested.

A statement that no final decision has been or will be made until the reply period is over; that, if a reply is received, it will be considered before a decision is arrived at; and that, if no reply is made, at the end of the reply period a decision will be made based upon the evidence of record. Even if the employee should reply before the end of the reply period, no decision should be made until the period to make reply has passed, on the premise that the employee has the full time to use to make an additional reply. The shortening of the reply period for any reason constitutes a procedural error which could result in a reversal of the action.

A statement that the employee will be given a written decision at the earliest practicable date after expiration of the reply period.

If considered desirable, an identification of whom the employee may contact (name or office) for clarification of procedures or review of the regulations relating to adverse actions.

Statement that the employee will have seven (7) days from receipt of the advance notice to answer orally and in writing and to furnish affidavits and other documentary evidence in support of the answer;

Statement that no decision will be made until the replies have been considered, or until the time for submitting such replies has elapsed;

If the proposed action is an indefinite suspension, a statement indicating the condition(s) which will bring the action to an end, i.e., completion of the investigation and/or criminal proceedings, and a statement that a removal action may be proposed prior to the termination of the indefinite suspension; and

Statement that the employee is immediately placed in non-duty status with pay, (5 CFR 752.404(d)) until such time as the action is effected.

The employee’s choice would not cause a conflict of interest or position;

The release of the representative from his or her official position would not give rise to unreasonable costs; or

The representative’s priority work assignments would not preclude release from those work assignments.

If the designated representative is an IRS employee, he/she shall receive a reasonable amount of official time to prepare and present replies to a notice of proposed adverse action, to review documents not otherwise available during non-duty hours, and to interview IRS employees on relevant matters. Specific allocations of time for union officials representing bargaining unit employees are governed by the provisions of the prevailing negotiated agreement.

If the designated representative, is an IRS employee, he/she a will be accorded travel and per diem in lieu of subsistence whenever it is necessary to conduct an oral reply or hearing away from the employee’s official station. The representative’s travel and per diem shall not exceed the amount that would be authorized for the employee with facing the proposed action. Travel and per diem for union officials representing bargaining unit employees will be allowed only if specifically provided by the terms of the applicable negotiated agreements.

The right to an oral reply must be invoked by the employee or the designated representative. As may happen, either through misunderstanding of the process or calculated intent, an employee may submit a somewhat ambiguous request for an oral reply. Requests for a "formal hearing" or for the right to confront accusers are typical examples. In denying such requests, every reasonable effort should be made to clarify the nature of the oral reply and to secure a determination of the employee’s intent to present an oral reply. In the event of ambiguous requests, a presumption that the employee has waived the right to an oral reply, without any recorded attempt to clarify the employee’s intent, may constitute a harmful procedural error on appeal.

The request for an oral reply should be submitted in writing to the proposing official. However, a verbal request for an oral reply should be accepted. In the event that a request is made verbally, the proposing official receiving the request should prepare a memorandum for the record.

The employee and his/her representative(s). (An employee may have more than one representative present at the oral reply, but for purposes of time, travel and subsistence, only the one designated representative will be granted the rights stipulated in 6.752.2.7.4);

The Oral Reply Officer and, at the Officer’s discretion, a technical advisor (normally a technical expert from the servicing Labor Relations office); and

A stenographer or court reporter.

The adverse action file, particularly the reasons for the proposed action contained in the advance notice;

The evidence relied upon in proposing the action;

Any relevant documentation referenced in the proposed action (e.g. rules of conduct, memoranda, technical manuals etc.); and

If the employee is a member of a bargaining unit, the appropriate provisions of the negotiated agreement.

Following the return of the certified and/or corrected copies of the transcript or summary of the oral reply, the Oral Reply Officer will carefully review all the evidence of record, all related documents, the written reply, the oral reply transcript or summary, and any related affidavits or documentary evidence submitted in connection with the written or oral reply.

In preparing to submit a recommendation, the oral reply officer will assess the credibility of all the evidence of record. He/she will reconcile conflicting evidence or, if appropriate, conduct further inquiry. He/she will determine whether the reasons and specifications in the notice of proposed adverse action are supported by the evidence and formulate a recommendation.

The Oral Reply Officer will make a recommendation (i.e., a recommendation to effect, mitigate or withdraw the proposed action) orally or in writing to the deciding official. The Oral Reply Officer’s findings should be discussed with the deciding official. The proposing official (whether or not that official is the Oral Reply Officer) may, of course, at any time prior to a decision by the deciding official, withdraw the action or substitute another action (either proposed or final) for which the proposing official has been delegated authority.

Did the employee commit the acts outlined in the reasons and specifications; i.e., are the reasons and specifications supported by a preponderance of the evidence (for an adverse action)? If the reasons and specifications are not supported by a preponderance of the evidence, but are supported by substantial evidence, a disciplinary suspension or lesser disciplinary action may be imposed. If the reasons and specifications are not supported by substantial evidence, no disciplinary action may be taken. (See IRM 6.751. for definitions of evidentiary standards. Information will be contained in IRM 6.751, which will be published at a future date.);

Will the action against the employee promote the efficiency of the service? An action will promote the efficiency of the service if there is a rational connection between the employee’s misconduct and the efficiency of the Service; (i.e., if the conduct may reasonably be expected to interfere with the ability of the employee to perform in the position or the agency’s ability to discharge its responsibilities). In off-duty misconduct cases, the nexus will have been stated in the proposal letter. If the deciding official determines that the statement should be amended or changed, the employee must be informed. (See 6.752.2.7.1(1)h.); and

What particular penalty serves to promote the efficiency of the Service? Mitigating factors must be considered and the deciding official must conclude that the penalty is appropriate.

The nature and seriousness of the offense, and its relation to the employee’s duties, and responsibilities, including whether the offense was intentional or technical or inadvertent, or was committed maliciously or for gain, or was frequently repeated;

The employee’s job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position;

The employee’s past disciplinary record;

The employee’s past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability;

The effect of the offense upon the employee’s ability to perform at a satisfactory level; and its effect upon the supervisor’s confidence in the employee’s ability to perform assigned duties;

Consistency of the penalty with those imposed upon other employees for the same or similar offenses;

The notoriety of the offense or its impact upon the reputation of the Service;

The clarity with which the employee was on notice of any rules that were violated in committing the offense, or had been warned about the conduct in question;

Potential for the employee’s rehabilitation;

Mitigating circumstances surrounding the offense such as unusual job tensions, personality problems, mental impairment, harassment, or bad faith, malice or provocation on the part of others involved in the matter; and

The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others.

The notice of final decision should not be transmitted until after the time frame specified for the submission of the replies has lapsed, even if a reply is received prior to that time. The decision notice must be transmitted prior to the effective date of the action. The effective date cannot be before the expiration of the advance notice period. Premature delivery or delivery after the effective date of the action constitutes a procedural error which, on appeal, may result in a reversal of the adverse action. A removal action becomes effective at 12:00 midnight on the date specified. All other adverse actions become effective at 12:01 a.m. on the date specified; and

The decision notice should be delivered as close to the thirtieth day of the advance notice period as is practicable. Uncontrollable events may delay the issuance of the decision notice. However, absent valid administrative reasons, long delays between a proposal to take adverse action and a decision to effect the action must be avoided.

Detection of procedural error;

Receipt of new investigative information which would be advisable to cite as additional reasons for action; and

Decision that the original evidence or additional new evidence warrants a more severe action than originally proposed.

A reference to the notice of proposed adverse action and its date;

A statement identifying, by date, the employee’s written and/or oral replies and certifying that these replies were considered. If no reply was made, that should so indicate;

A statement specifying the determination reached on each reason and specification in the notice of proposed adverse action. Preferably, the statement should enumerate each reason and specification with a clear indication whether it is sustained or not sustained. No explanations for these determinations need be given. (If all the reasons and specifications in the advance notice are sustained, a clear statement to that effect is sufficient. A determination relative to any factor stated in the proposal that was not listed as a reason, such as a past disciplinary record or other aggravating circumstance must also be included. Any nexus statement in the proposal letter and any amended or changed nexus statement should be referenced. Any reason not specifically presented in the advance notice must not be introduced in the notice of decision. Since an employee has a right to reply to all reasons in advance of a final decision, the introduction of a new reason at the time of decision would be procedurally defective;

If a bargaining unit employee raises an issue of discrimination, a statement of the legitimate management reason for the action;

A statement that addresses any factual disputes raised by the employee’s reply or replies and which states the resolution of each dispute;

A statement that indicates that consideration was given to any medical documentation furnished by the employee;

A statement that the sustained reasons and specifications, as well as any other factor which was considered (as set forth in the proposal), warrant the action to promote the efficiency of the Service;

The nature of the action to be effected. While there is no requirement, it is recommended that information be included demonstrating that the deciding official has considered all relevant factors and has reached a judgment that the penalty is appropriate. This can be done either by means of a statement to that effect, or by specifically addressing mitigating factors, including those raised by the employee and/or the employee’s representative. In all cases, aggravating circumstances, such as a prior disciplinary record, which are mentioned in the proposal letter and are relied on to support an enhanced penalty (i.e., a more severe penalty than would be the case in the absence of the circumstances), must be discussed. However, there should be no discussion or consideration of other possible aggravating factors (e.g., performance, dependability, etc.) not stated in the proposal letter, since they could be considered to be reasons for the action;

The effective date of the action. The effective date of the action must follow the employee’s receipt of the decision notice;

A statement of applicable appeal rights. Employees covered by 5 CFR 752.401(c) are entitled to appeal the merits and procedures of the adverse action anytime during the period beginning with the day after the effective date of the action and ending twenty (20) days after that date, to the appropriate Merit Systems Protection Board Office. Bargaining unit members covered by 5 CFR 752.401(c) have an alternate appeal route through the negotiated lRS-NTEU agreement. Employees not covered by 5 CFR 752.401(c) may appeal under the IRS Agency Grievance Procedure (IRM 6.771.1);

A statement that an appeal based in whole or in part on discrimination as part of this action may be appealed to the Merit Systems Protection Board under Part 752 or as an alternative, through the Service’s discrimination complaint system along with any other issue appealable through MSPB, under the provisions of Part 1614 of the Equal Employment Opportunity Commission regulations, but that the employee may not initially file both an appeal and a complaint on the same matter (whichever is filed first shall be considered an election to proceed in that forum);