The (Good?) Old Days in Civil Service Law

By William Wiley, November 14, 2018

Hey, smart people! Guess what this is?

The photo above is of an “Appeals System” 9×12 card that I took off of a Navy bulletin board in the mid-70s. It shows the appeals processes available to federal civilian employees in 1969.

I thought you might like to know what it was like Back in the Day when old Bill Wiley started in this business. First, there are three major differences in how adverse actions were viewed back then:

• “Reduction in Rank” was just as appealable as was a monetary or grade demotion. Rank was given an extremely broad definition. If I was reassigned from supervising eight subordinates to only seven, here comes an appeal. Move my office from the top floor to the basement, my rank is starting to feel reduced again. Easy to see why Congress did away with this concept when it passed the Civil Service Reform Act of 1978 (CSRA).
• Today, to be entitled to a hearing challenging an adverse action, a suspension needs to be more than 14 days long. In 1969 and up to 1978, you got a hearing for a suspension only if it exceeded 30 days.
• Thanks to the CSRA, unionized civil servants today have a right to binding arbitration. This poster states in a footnote that even though arbitration may be invoked by employees in a collective bargaining unit, the result is only advisory to the agency.

And now, for the procedural choices. If the Navy reprimanded an employee or suspended him for 30 days or fewer, the employee had an appeal choice to make between two options:

1. A hearing before the Commanding Officer (CO) (facility head for other agencies) followed by a written decision, or
2. A procedural review for suspensions to a Civil Service Commission (CSC) regional office and then another procedural review by the CSC Board of Appeals and Review. Written decisions at both levels, but no hearings. CSC was the precursor oversight agency before MSPB took over in 1978.

If the Navy invoked a longer suspension, a reduction in rank or compensation, furloughed, or fired the employee, the employee had an appeal choice between two options:

1. In the Navy (with parallel procedures in other agencies), the employee had a right to a hearing before the CO, followed by a written decision. (Unionized employees could substitute arbitration at this step.) That decision could be appealed to the Secretary of the Navy, with no hearing, just a final written decision. As an alternative to the Secretary of the Navy’s review, the employee could take the CO’s decision to CSC, as below.
2. As an alternative to the CO’s review, above, or after the employee invoked the CO’s review and received a decision, the employee could appeal to the CSC regional office where he would get a hearing and a written decision. Unlike the CSC review of shorter suspensions that were just on the procedures, these reviews were of the merits of the action. Either the employee or the agency could challenge the decision of the CSC regional office to the CSC Board of Appeals and Review. That review level did not provide for a hearing, but it did provide for a final written decision.

Compare these old appeals procedures to today’s procedures provided for by the CSRA and you will see three huge philosophical shifts that occurred:

• Binding arbitration! Think about that. The federal government (aka, the king) was yielding its right to decide who worked for it and to award backpay and attorney fees to an unknown, untested, outside entity widely believed to benefit from setting aside disciplinary actions. For no other reason, if I were a federal employee, I would form or join a collective bargaining unit just to get this benefit.
• Judicial review! Not only was the power of the executive branch being diminished by the implementation of binding arbitration, the CSRA provided that final review of serious adverse actions was vested not with the President via the heads of the federal agencies, but with the courts. Unlike decisions being made within the executive branch, court decisions are not all that concerned about what makes for an effective government. Judicial decisions interpret the law. The negative practical effects of those legal decisions, the court leaves up to Congress to fix.
• Representation! Although some agencies allowed for representation in the appeals process in bygone times, the only alternative in which representation was guaranteed was in the advisory arbitration procedure. When appealing to the CSC, representatives were sometimes tolerated, although the appellant was given no explicit rights to representation. Under the CSRA, employees have statutory rights to be represented in any adverse action. With representation soon came discovery and trial-like administrative hearings, developments that have evolved too often into tools for the coercion of agencies.

These days, an agency has to not only decide to fire a bad employee, it must be ready to commit the legal resources and management time necessary to defend that decision. It’s easy to see why some managers choose to avoid holding bad employees accountable through adverse actions given the high costs of defending those decisions, even when they are valid decisions for doing so.

So now you know what it used to be like. Good old days, bad old days … you get to decide. In comparison, we have the current days, built on the philosophical decisions made by Congress in 1978. Most importantly, though, we have the days yet to come. There’s significant effort afoot to reduce the power of unions in the civil service. Congress has already made it easier to fire employees at the VA, and is considering language to expand that legislation to the entire executive branch. At least a couple of members of Congress would replace the federal civil service with about two million employees at will. (Can you say “patronage,” boys and girls?)

It’s good to remember the past. It’s essential to know the present. It’s historically vital to pay attention to what will be happening in the future. Wiley@FELTG.com