Yes, But Who?

By William Wiley

Here’s another article in our series of advisories to the new incoming President. Hey, you may know a lot about building golf courses or flying around the globe acting all “Stately,” but here at FELTG, we bet you don’t know diddly about federal employment law. Fortunately, we do, so here’s another recommendation for you.

Dear New President:

Ask “who.”

Now that you’re in charge of the Executive Branch, about once a month or so you’re going to read some article about gross malfeasance in the way that one of your federal agencies is being run. The media loves to make us civil servants look bad, and goodness knows those fellows on the other side of the aisle on Capitol Hill absolutely revel in the thought of dragging one of your secretaries before an oversight committee where she can be asked brilliant questions such as [implementing Southern drawl], “Madam Sek-e-tary, are you saying – for the record – that you fully support government waste, fraud, and abuse at the highest levels of your administration? My goodness, how do you stand to look at your sweet self in the mirror? Bless your little heart.”

Case in point: September 1, 2016, Washington Post, A-2: Patent examiners – Nearly 300,000 hours found to be fraudulently billed amid case backlog. The article discusses a recent Inspector General (IG) report which found that for part of 2014 and all of 2015, U.S. Patent and Trademark Office (PTO) employees cheated the government out of $18.3 million in salary (and possibly up to $36 million) by claiming time worked which was not. The report points to an abuse of flexiplace/flextime policies as a source of the lost time, plus employees who “gamed” the system while supposedly reporting to the PTO main office in Alexandria.

Assuming that this report is in general close-to-correct, as President you will be interested in fixing thigs, won’t you. Therefore, you will want to know the cause of this problem so you can address the cause. What follows are a couple of possible causes alluded to in the article (followed by our usual snarky FELTG comments):

• “There may be other [legitimate] reasons for the lack of a digital footprint.” Yeah, and when I was in college, I subscribed to Playboy to read the in-depth articles. If there were other legitimate reasons for the discrepancies, don’t you think those brilliant, well-trained IG investigators would have noticed them?
• The union contract has limitations on a supervisor’s ability to hold flexiplace employees accountable. Hey, guess what? Collective bargaining agreements can be changed! Management can make proposals and bargain. If a compromise cannot be reached, four Presidential appointees decide what the CBA will say. When confronted with a management proposal that would increase accountability, supported by a very public IG report that finds there is limited accountability, my money is on those Presidential appointees coming down on the side of efficient government.
• “Eight years ago, the agency stopped requiring employees to swipe their badges when they leave the headquarters building. This is only required when they go into work.” Then change the darned policy. Sounds like an internal security matter for PTO, and internal security policies do not have to be bargained with the union (although the impact of the policy change does). For employees who are not in the bargaining unit, the policy change can be effective tomorrow. Same answer for allegedly outdated low performance standards. Changes to performance standards also do not have to be bargained.

Somehow poor employee accountability procedures managed to be put in place at PTO. Mister/Madam President, the “who” question is, “Who is responsible for this happening?” There are two potential groups of culprits:

Line Management

1. It is possible that the leadership at PTO is generous on purpose; that the folks in charge intentionally put into place policies that allow employees to game the system and avoid accountability. Maybe they think that federal employees are underpaid and that by allowing abuse of the pay system, good people will remain employed at PTO rather than go work for some high paying patent law firm. If this is the case, that the slack policies were intentional, then you as El Presidente need to consider who you appoint to these positions and whether this is how you want your appointees to manage.
2. Alternatively, it is possible that the PTO leadership came to believe that it had no choice but to reduce the oversight of the agency’s employees, that it had to sign a CBA that reduced accountability, that it could not fire employees who abuse leave, that it had to have loose accountability procedures. If this is the case, then somebody on your behalf should be looking into how PTO leadership came to believe these things.
3. Or, it is possible that the individuals who have been appointed to leadership positions in PTO are just stupid. For a solution if this is the case, see “A.” above.

Staff Advisors

1. Perhaps the PTO accountability staff advisors (the Office of General Law and Office of Human Resources primarily) have advised line management on good procedures for holding employees accountable, and line management has rejected that sage advice (see A. and C. above). For example, when the PTO union proposed that employees who work at home part-time not be required to log onto their computers and have 24 hours to respond to a phone call or email from their supervisor, maybe the staff advisor to the management bargaining committee gave solid accountability advice: “That’s just plain crazy. We’ll have no way of documenting whether people do their work when they say they did. There’s no way we should agree to that.” If senior management chooses to ignore this recommendation, there’s not much the LR advisor can do, but agree to the proposal and sign the CBA.
2. Alternatively, maybe it wasn’t line management who made these sorts of decisions. Perhaps the staff advisors were the “who” that made these calls, that implemented low production standards based on how work was being done in the pre-computer days of 1976 (don’t get upset with us; we’re just reading from the Post article) and did not recommend charging people AWOL and reprimanding or firing employees who cheat. If this is the case, did the staff advisors act this way because they are evil intentional wasters of tax payer dollars, or are they just ignorant?

Here at FELTG, many times all we know is what we read in the newspapers. And that is all we know about this situation. The bottom line given the facts as reported by the IG are these. When it comes to who is responsible, it is either:

1. Ignorance, or
2. Evilness.

Madam/Mister President, we have to leave the evilness up to your ability to select good appointees. As for the ignorance, we aren’t a training company for nothing. You want your people to learn how to bargain a contract with your union? We teach that. Discipline employees who lie about their use of government time? We can show you how to fire them quickly and fairly until the cows come home. Manage absence and leave? We present an entire week of training on that singular topic twice a year, at a cost to the government of much less than $18,300,000.

And finally, here at FELTG, we are absolutely bewildered by the following little tidbit from the article:

“Investigators did not recommend that patent officials pursue administrative or criminal action against any individual examiner because the inspector general is prohibited under federal privacy laws from disclosing their names.”

You’re telling us that we have created an entity in government to investigate criminal activity and employee misconduct, but that agency cannot release the names of employees for the purpose of criminal prosecution or discipline for misconduct? Oh, Mx President, the problem is even worse than we thought. Wiley@FELTG.com