| p. 32 | pp. 53-54 | p. 137 |
Id. at p. 32, reprinted in 1978 U.S. Code Cong. And Admin. News (USCCAN) at p. 2754:
Section 1206 specifies the authority and responsibilities of the Special Counsel. Subsection (a) authorizes the Special Counsel to receive and investigate allegations of prohibited personnel practices. The Special Counsel may, on his own, initiate such investigations as well. The Special Counsel should not passively await employee complaints, but rather, vigorously pursue merit system abuses on a systematic basis. He should seek action by the Merit Board to eliminate both individual instances of merit abuse and patterns of prohibited personnel practices.
Subsection (b) requires the Special Counsel to conduct an investigation requested by any person if the Special Counsel has reason to believe that a personnel action was taken, or is to be taken, as a result of a prohibited personnel practice. The Special Counsel need not conduct an investigation of a charge which appears groundless or frivolous on its face. Some preliminary inquiry will likely be necessary, though, to determine whether a charge warrants a thorough inquiry. The Special Counsel would not require information amounting to "probable cause" to conduct an investigation. Only a reasonable belief that a violation has occurred or will occur is sufficient basis for an investigation.
Id. at p. 53-54, reprinted in 1978 USCCAN at pp. 2775-76:
Sections 7701 (b) and (c) govern the type of hearing an employee must receive before the Board. The Committee amended this provision of the bill to make it absolutely clear that an employee would receive a full evidentiary hearing in any case where there is a dispute as to any genuine and material issue of fact-that is, a dispute as to facts which must be resolved before a decision can be reached, and which may be most appropriately considered and resolved through the traditional adjudicatory methods used in evidentiary hearings. This would include instances, for example, where oral testimony and cross-examination is the best way to test the credibility of the witnesses. The bill was amended by the Committee to specifically provide that in such cases an evidentiary hearing should include the traditional right of cross-examination. In any case involving removal of an employee from the Federal service, the Board, because of the importance of the case, must provide that the case be heard by an administrative law judge selected according to the especially demanding procedures specified in the Administrative Procedure Act, or the Board must assign the case to one of its more qualified and experienced appeals officers.
Where there is no dispute about the facts, the presiding officer may avoid holding an evidentiary hearing since in these cases a full hearing is unnecessary. The Committee amendment specifies the procedure either party must follow if it requests summary judgment on the grounds there are no factual disputes in the case. The wording adopted by the Committee assures the employee a full opportunity to present his case before a decision is made. The presiding officer may authorize the conduct of discovery procedures so that the employee has a chance to assemble his case before a decision on the summary judgment motion is rendered. This is especially important because often the agency alone will possess the records the employee needs to successfully argue his case. The administrative law judge or appeals officer may afford the parties the right to an oral argument before a decision is reached on the summary judgment motion.
Id. at p. 137, reprinted 1978 USCCAN at p. 2871:
The Senate bill provides that an employee is entitled to an evidentiary hearing before the Merit Systems Protection Board unless a motion for summary decision is granted. A motion for summary decision shall be granted if the presiding officer decides that there are no genuine and material issues of fact in dispute. The presiding officer may provide for discovery and oral representation of views, at the request of either party, in connection with a summary decision.
The House amendment contains no provision for summary decision. It provides that an employee has a right to a hearing before the MSPB for which a transcript will be kept and the right to be represented by an attorney or other representative.
The conference substitute in section 7701(a) adopts the House provision so that the employee is entitled to a hearing on appeal to the Merit Systems Protection Board. The hearing may be waived by the employee.