A Chance to Do the Right Thing
If you know a bit about emergency room medicine (or, heart attacks), you may have heard of “the golden hour.” That’s the critical time period that begins with the onset of a heart attack. The decisions made and the care received during this first hour may determine the quality of all the remaining hours of the life of the patient.
Well, we may this week have begun to see the “golden hour” for the life of the Merit Systems Protection Board. On March 1, 2016, at midnight, Susan Tsui Grundmann completed her term of service as the Board’s Chairman, having begun this odyssey on November 12, 2009.
During that time, the Board endured one of the major challenges of its existence: the processing of thousands of (unnecessary) appeals of furloughs caused by the Stupid Sequestration in 2013. From my view, the credit for handling that mess flows directly to the regional directors and administrative judges who worked day and night to provide fair and expedient hearings and decisions for the individuals who appealed their furloughs. That hard work occurred under the leadership of Chairman Grundmann, and she deserves significant credit for that accomplishment.
However, with credit comes responsibility. And there are decisions for which Chairman Grundmann has responsibility that had, have had, or will have a significant (though unintended) adverse effect on the civil service far beyond the resolution of the sequestration furlough appeals:
- The Board has ruled, over the objection of the current Member Mark Robbins, that federal agencies must administer essentially identical discipline for similar misconduct throughout an agency throughout the world. The result has been that agencies today are more likely to remove employees rather than show mercy out of fear that implementing a penalty less than removal will lower the bar for all future similar misconduct within the agency. As importantly, the other major adverse result is that an appellant who otherwise may be guilty as sin will have his removal penalty reduced or set aside if anyone else anywhere in the agency has ever engaged in similar misconduct and was not removed. This philosophical change has been the singular most problematic series of decisions issued by the Board in my 40-year career. Woebcke v. DHS, 2010 MSPB 85, Lewis v. DVA, 2010 MSPB 98, and Villada v. USPS, 2010 MSPB 232, aka “The Terrible Trilogy.”
- Although recently overturned by the Federal Circuit Court of Appeals, the Board held for a period of time that a federal employee could not be reassigned geographically if she did not want to be reassigned. I know; I know. The holding was couched in the language of “the efficiency of the service,” but the result was the same. If an employee refused a reassignment, and it would cost the agency more to fire the employee for being insubordinate than it would to leave the employee in place, the “efficiency of the service” concept mandated that the employee be allowed to remain in the preferred position even though the agency had rightfully decided that the employee’s services could be better utilized in another location. In its reversal, the court stated that the Board “is not empowered to reject controlling law.” Further, “The Board erred as a matter of law in abandoning the two step approach” previously set forth by the court. Cobert [OPM] v. Miller, Fed. Cir. No. 2014 (September 2, 2015). Sadly, the rejection of controlling law has been a characteristic of a number of decisions issued under the leadership of the current Chairman.
- In reference to the selection of an appropriate penalty, in the seminal case of Curtis Douglas, MSPB ruled that “the Board’s function is not to displace management’s responsibility but to assure that managerial judgment has been properly exercised within tolerable limits of reasonableness.” Douglas v. Veterans Administration, 5 MSPR 280 (1981). In interpreting 38 U.S.C. § 713 (the new legislation that applies to SES removals at DVA), the Board concluded that the efficiency of the service standard and Douglas do not apply, and that the express statutory language creates a rebuttable presumption in favor of the agency’s discretion to select the appropriate penalty. 79 Fed. Reg. 63031, 63032 (October 22, 2014). In other words, it should be even harder for the Board to find a penalty to be unreasonable in a DVA SES removal/demotion action than it would be under the significantly deferential standard of Douglas.
Yeah, well tell that to Deputy Secretary Sloan Gibson of the Department of Veterans Affairs. In decisions issued this year, the Board’s judges, applying the recent precedence established by the Grundmann-Board, while sustaining the charge brought against the appellants, the senior judges assigned to these cases set aside the demotions and removals of three senior executives because the judges disagreed with the managerial judgment in the case: “I do not find these [distinctions made by Deputy Secretary Gibson] are meaningful distinctions.” Rubens v. DVA, PH-0752-16-0151-J-1 (February 1, 2016); “Deputy Secretary Gibson … stated [a co-worker’s conduct] that would go to lacking sound judgment is different. I do not see it as different,” and “Deputy Secretary Gibson testified that he had no intent to discipline [appellant’s co-worker] because [the co-worker] did not receive [$274,019.12 in] relocation benefits. I do not find that these are meaningful distinctions. First, although the she did not relocate, [the co-worker] had a sizable pay raise to lose [of $18,000 per annum].” Graves v. DVA, CH-0707-16-0180-J-1 (January 29, 2016); “In his decision letter, Deputy Secretary Gibson indicated that he considered the appellant’s response to the charge. However, … Deputy Secretary Gibson’s decision letter did not [specifically enumerate the mitigating factors in the appellant’s response].” “The record does not reflect as simple, obvious, or dire a situation as [Deputy Secretary Gibson] has presented. … I find that the facts and circumstances as presented by the record before me demonstrate that it is unreasonable to remove an employee who has very positively contributed to the agency for more than 42 years for this one offense.” Weiss v. DVA, NY-0707-16-1049-J-1 (February16, 2016).
This SES/DVA series of agency-adverse decisions has had such a negative effect that the Secretary of DVA is in the process of asking Congress to exclude all of his SES discipline from review by MSPB. And as we have predicted here many times, soon it will be obvious that if it’s good enough for those DVA SESers to be exclude from the Board’s jurisdiction, it’ll be good enough for the non-SES contingency at DVA. And eventually, if it’s good enough for DVA, why not DoD? Or, DHS? Or, all the other federal agencies who do important government work as does DVA? The Board’s actions these past five years have pushed us to the brink of losing our civil service protections, the ones we’ve had since the Lloyd-La Follette Act of 1912.
There are other matters that define the past five years at the Board under Chairman Grundmann: appellate level backlog of cases at headquarters, the time and staff necessary to begin issuing non-precedential decisions, and the finding last year by an administrative law judge that top leadership at MSPB reprised against one of its own senior attorneys for whistleblowing. With that noted, the case law direction described above has the greater potential for causing long-lasting difficulties within the civil service, for civil service management and employees.
So how’s all of this related to having a heart attack? Simple, if you think about it. Digest these facts for a few minutes:
- Chairman Grundmann’s term ended at midnight on March 1. She is now in a holdover position, able to remain as Board Chairman until March 1, 2017.
- Prior to today, President Obama could not replace her. Now he can.
- If the White House does not replace her, she becomes a political pumpkin this time next year, unable to remain at the Board.
- MSPB has a vacancy. It today has only two Board members rather than the three envisioned by statute.
- Assuming that the Republican Senate does not approve the currently nominated Democratic replacement to fill the Board’s vacancy, and assuming that Chairman Grundmann holds over to March 2017, our new President, ___________ (fill in the blank with your prediction), within not quite six weeks of taking office, will be confronted with a one-membered Board that cannot issue decisions because it lacks a quorum.
Hence, a “golden hour.” Actually, a golden year: a period of time in which the White House can act to replace Chairman Grundmann, thereby foreclosing the probable reality that MSPB will cease to function about this time next year, the federal agency equivalent of having a heart attack. And the way to do it, in case anyone at the White House needs advice on this, is to send a nominee to the Senate that has a good chance of being approved, someone who can serve as a healing force rather than as a divider of employees-against-management. As my friend and occasional protagonist, Peter Broida, has said, the Board was created to uphold management’s actions. That’s because agency managers should NEVER fire someone who doesn’t deserve it. If agencies always did it right, the Board would never set aside or mitigate a penalty.
But as recently reported by Chairman Grundmann, in her defense of the reversal of the DVA SES actions, MSPB affirms agency removals 75 to 80% of the time. Although put forth as an indicator of the Board’s neutrality, after 40 years of law-making, to an informed reader that statistic is instead an indicator of the very problem the Board is causing.
We are in desperate times (review the results of the Super Tuesday vote if you doubt me). We need a solid, consistent, deferential approach to the serious adverse actions taken by senior federal managers. MSPB is the only game in town that can take us in that direction. Hopefully, the White House and the Senate can see that and thereby act in cooperation to give us immediately new Board leadership that will take us in a positive direction, away from the brink of civil service collapse and toward a government workforce that is accountable to we, the people. Wiley@FELTG.com