The Top 10 FELTG Newsletter Stories of 2019

,

By Dan Gephart, December 17, 2019

Before we put the wrap on 2019, all of us here at FELTG Headquarters want to thank all of you who make up what our Past President William Wiley dubbed “FELTG Nation” —  our great attendees, customers, and readers. It’s been quite a year as we all worked together to make the government’s accountability systems more efficient.

We couldn’t do what we do without our uber-talented group of instructors, including Barbara Haga, Katherine Atkinson, Ann Boehm, Meghan Droste, Dwight Lewis, Anthony Marchese, Shana Palmieri, Jim Protin, Ricky Rowe, and Joe Schimansky. And we can’t forget the continuing contributions of Bill Wiley and our other past president Ernie Hadley – two absolute legends in the field of federal employment law.

Unless any major stories break before then, we will see you all again in the new year. And it’s a big one for FELTG, as it marks our 20th year of federal employment law training. Meanwhile, we’re expecting Supreme Court decisions on age discrimination and gender stereotyping, both of which will have a major impact on the federal workplace, as will OPM’s regulations implementing President Trump’s executive orders. And we’ll continue to wait with our remaining ounce of patience for someone – anyone, actually – to fill the empty positions on the Merit Systems Protection Board.

For now, let’s take a look back at this year. Introducing the 10 most popular articles (based on the number of reads and forwards) from the FELTG Newsletter in 2019.

  1. Can an Agency Track Down a Former Employee and Discipline Him?
  2. Out of Control
  3. The Fed Who Farted on His Coworkers: The Case is Not Always What it Seems
  4. Cook-ing a Sick Employee
  5. Can You Fire a Federal Employee for Body Odor or Bad Hygiene?
  6. Deep-fried Cubicle Chicken, Naked Employees, and Unwritten Rules
  7. Legitimate Non-Discriminatory Reasons When Preselection is a Defense
  8. Cook, McCauley, and Savage: What if AWOL is Involved?
  9. Can You Fire a Federal Employee Who Accidentally Eats a Pot Brownie?
  10. Excessive Absence and the Third Cook Factor

Here’s to a wonderful holiday season and a successful 2020 for all!

Yes, ADHD Actually is a Disability – and NO, All Kindergartners Don’t Have It

,

By Deborah Hopkins, December 3, 2019

My brother is several years younger than I am, and I remember when he was in kindergarten, his teacher recommended he go on Ritalin because he was hyper and she thought he had ADHD. My parents were taken aback and started talking to other parents who had children in my brother’s class. It turns out the teacher had recommended that 22 out of 25 of her students go on Ritalin.

I’m no medical expert, but I can tell you that 22 kids in his class did not have ADHD; they were five and six years old and had energy, as kids do. Maybe the teacher should have opted for a classroom of students who were a bit older, but I digress.

As we teach during the behavioral health day of Emerging Issues Week (next offered in Washington, DC, July 20-24), ADHD is a brain disorder with a pattern of inattention and/or hyperactivity-impulsivity that interferes with functioning or development. This may include:

  • Inattention – individual wanders off task, lacks persistence, or has difficulty sustaining focus.
  • Hyperactivity – individual moves about constantly, excessively fidgets, taps, or talks. The individual is frequently restless.
  • Impulsivity – individual makes quick decisions without thinking through them first; may have a desire for immediate gratification and/or may be socially intrusive.

Note: These problems are not due to defiance, lack of comprehension or substance use.

I’m not sure if the over-diagnosis of ADHD in the 1980s and 1990s has led agencies to believe it is not a legitimate disability, but don’t make that mistake. ADHD does exist and for the people who have this condition, the symptoms and effects are very real.

If you’ve been in this business longer than five minutes, you are aware that Americans With Disabilities Act, the Rehabilitation Act, and the various amendments to these laws provide employment protections to certain people with disabilities.

In order to be covered the employee or applicant must:

–      Have a physical or mental impairment that substantially limits one or more of the major life activities of such individual,

–      Have a record of such an impairment, or

–      Be regarded as having such an impairment

42 USC § 12102(1).

Obvious physical impairments are sometimes handled better by agencies than mental impairments. Indeed, a number of mental impairments, such as ADHD, are what we refer to as “hidden,” “unseen,” or “invisible” disabilities. While it’s true that many physical disabilities are also invisible to the observer, there have been too many cases where agencies denied reasonable accommodation to employees with unseen mental impairments.

I’d like to look at two cases involving ADHD.

In the first, the complainant, who had ADHD, had a difficult time concentrating, so she requested to be moved to a quieter work area. Though the agency agreed the complainant had a disability, it took two years (!!!) before it addressed her request to move to a quieter, low-traffic area to work. She also requested she be allowed to do work that “focused on the task at hand,” be allowed to avoid multi-tasking whenever possible, and that the agency provide her with time to readjust when moving from one thing to another and time to formulate ideas when trying to streamline questions or statements. The agency did not grant these additional requests beyond the workspace move, and the complainant’s performance rating was affected as a result. The Commission found the agency did not show it would be an undue hardship to consider these requests and ordered the agency to expunge negative performance reviews from her file, and to consider the complainant’s claim for compensatory damages. Michelle G. v. Treasury, EEOC Appeal No. 0120132463 (May 13, 2016).

In the second ADHD case, the complainant’s condition substantially limited her ability to concentrate. She also experienced side effects from multiple medications which further affected her ability to concentrate. Her request for accommodation included a medical note that stated, “cannot concentrate in loud open cubicle environment.” She requested a regular telework schedule, a private office or cubicle, or a modified work schedule. The agency requested additional information, which the complainant responded. Her medical documentation noted that the cubicle location allowed “for too many distractions for her disability” and that she “needed to work in the most distraction-free environment possible (e.g., a private office or quiet cubicle away from noise and/or distractions).” This did not satisfy the agency, so they asked for more. Once again, the complainant complied. Her doctor explained that she was: [H]aving difficulty wrapping up the final details of a project, organizing things, evidencing signs of physical and mental restlessness, easily distracted by noise, talking too much and interrupting people, and trouble waiting her turn, which Complainant’s doctor described as “classic signs of ADHD.” The complainant’s doctor added that medication “was not the full answer” and that “ADHD impact[ed] upon one’s ability to care for self, to speak appropriately, to interact with others, to concentrate and to work effectively.” The agency considered this medical documentation insufficient, so the complainant filed an EEO complaint over the denial of reasonable accommodation.

Eventually, the Commission found that the Agency failed to present sufficient evidence that granting the complainant’s request would have been an undue hardship, and the complainant received $60,000 in non-pecuniary damages, plus pecuniary damages and attorney’s fees. That’s an expensive lesson to learn. Selma D. v. Education, EEOC Appeal No. 0720150015 (April 22, 2016). [Allow me to note that the original RA request came in 2007 and the decision was not issued until 2016. Talk about harm.] So, there you have it.

If you want more, there’s still time to join FELTG’s webinar Accommodating Hidden Disabilities in the Workplace this Thursday. Hopkins@FELTG.com

And Now a Word With … James Read

,

By Dan Gephart, November 5, 2019

James Read, Director, Policy and Evaluation, Merit Systems Protection Board

Last month, we talked with MSPB General Counsel Tristan Leavitt about the adjudicatory and other work that the 200-plus employee agency continues to do despite not having any Board members since February. It’s a few weeks later and the Board still lacks members, while the lack of a quorum has inched even closer to hitting the three-year mark.

This month, we catch up with James Read. The former chief counsel for then-Member Robbins took over as director of the agency’s Policy and Evaluation office a few years ago. Read oversees the group of psychologists, HR specialists, statisticians, and lawyers who fulfill the agency’s statutory responsibility to conduct objective, non-partisan studies of the Federal civil service and other merit systems in the Executive Branch.

DG: How have your unit’s reports been hampered by the lack of a quorum?

JR: We’ve been putting out publications in shorter form since we lost the quorum, but it’s more than just length. The official reports as described in statute go to the President and Congress and are approved by the board, and they typically contain policy recommendations. They are only issued with approval of board members. Our thinking is that to the extent we can provide useful information through research briefs, we should. They are a little lighter on recommendations, but we have been putting out publications.

We have information about sexual harassment in the federal workplace that others don’t have. We’ve been releasing some of it, but an official report is on hold. Almost everything else we’ve been trying to convert to shorter publications.

DG: How do you measure whether a report is successful?

JR: We don’t have a hard measure. We look at the audience for which a report may be intended, and see what effect it had on the audience. Some reports are for policy makers. A successful report would be one that results in change of policy. An example would be our 2014 report that talked about veterans hiring, and a DOD-specific authority that was restricting competition for jobs and had other unintended consequences. Congress took it up and changed the law — and cited our report. That’s an example of success.

Other reports, we intend as educational pieces. Some are intended for managers and new leaders to help educate them. I’ve heard of chief learning officers in agencies using our reports to design in-house training. When that happens, a report did its job.

Sometimes, reports are intended for multiple audiences at the same time. We’ll have practice pointers intended for HR and managers, footnotes and appendices intended for researchers, people trying to replicate the work in their organization. We believe it’s important to show our work, so we remain credible. We’re not just sitting here in an ivory tower contemplating. We have an empirical basis for our findings.

DG: You recently asked for input on what reports people want to see. What kind of input did you get? What reports will you be doing based on that feedback?

JR: (We received) hundreds of ideas. The last time we went out asking for ideas was 2014, so five years on we felt we needed to refresh the ideas. The timing seemed to make sense with the lack of quorum. We went out to stakeholders, unions, chief human capital officers, affinity groups, and individuals. A lot of what we got were variations on themes of what we’ve seen throughout the years: Are whistleblower protections adequate? How can we improve the hiring, classification, compensation and performance management systems? Are they due for overhauls? How does the government adapt to changing expectations of younger workers? What alternatives might there be to the Title 5 system? We’ve been vetting and refining the ideas for several weeks now. Our goal is to have a proposed agenda to present to the new chairman when he arrives.

DG: What has been the most controversial report you’ve done?

JR:  A 2015 report of how agencies use various appointing authorities and the results of the different choices agencies make caused a bit of a stir. The report found Title 5 hiring rules systematically favor men over women. We found, for example, that since the 1970s, women’s participation in general civilian labor force grew from the lower 30 percent range to almost 50 percent, but in many years the government was not even reaching 40 percent.

The Civil Service Reform Act of 1978 states that the Government should strive to achieve a workforce representative of all segments of society. For many years now, women have been earning more bachelor’s degrees than men and they make up almost half the civilian workforce, yet under 40 percent of new hiring is women. This took people by surprise. They thought we were attacking OPM, and that was certainly not the intention. The biggest question raised by report was: What do we do about this?

One side note: We were criticized for not including VA nurses. If we had included them in the percentage of women as new hires, it would’ve been higher. But in a way, that criticism showed our point. We were looking at Title 5 hiring, and the nurses at the VA are hired under Title 38. So staying within Title 5 world, you do see a hiring system that appears to disadvantage women.

DG: Will you follow up on this report?

JR: I’d like to follow up. The last time I looked at the numbers was for FY 16 and they hadn’t budged. It’s a good area for follow-up, not a full-blown report but a dive into the statistics. It may be that to some extent women are making individual choices not to seek government employment in the same numbers as men do, so we need to study the applicant pool.

DG: The Supreme Court will rule this term on whether Title VII covers discrimination based on sexual orientation. You did a report on that a few years ago. However, that report wasn’t controversial. 

JR: There had been questions swirling for years: What’s the source of the prohibition? Title VII of the Civil Rights Act? The CSRA of 1978? Something else? We looked at the history of systematic discrimination against gay employees and the gradual change of view to acceptance. Clarity regarding the legal prohibitions was needed, but MSPB had be extremely careful not to come down on one side or another because MSPB is not a policy-making body. Every year since 2000 or so, there was someone in the House who introduced a bill to amend Title VII to prohibit discrimination in employment based on sexual orientation. We didn’t want to look like we were taking a side in the debate. We were expecting some backlash from the report, and we didn’t get it. The report was well-received.

DG: What other reports have had impact?

JR: There was a pair of related publications from 2015. One was a full report on due process, an official report to the President and Congress. Another report was on adverse actions. Deb (Hopkins, FELTG President) quoted from it in your newsletter recently, and that’s an illustration of its lasting power. In 2014-15, influential voices were saying “the system is broken, and you cannot fire a federal employee. Maybe we should go at-will.” It turned out that many people managing in the system didn’t understand it. They thought you needed a higher standard of proof to fire a federal employee than the law requires, and we pointed out that’s not the case. We developed an outreach program around the publications. The message I tried to deliver was managers need to understand the system and have the will to act, and the support of the agency. We don’t need to throw out rules or abandon due process.

DG: What do you see as the most significant challenge facing the civil service in the next 10 years?

JR: The relationship between Washington and local agencies needs to be recalibrated. I’m not suggesting one direction or another. Look at what happened in ’90s. OPM was cut in half in terms of its resources and authorities were delegated to the field. In the area of hiring, for example, you see the difficulties in the system. Twenty-five years ago there was the symbolic burning of the (Federal Personnel Manual). The rules and the laws upon which they were based were not repealed, however, even as OPM delegated authority to several hundreds of offices that now have the responsibility for developing sound recruitment strategies and rigorous legally compliant assessments, and then evaluating applications. That’s hard for a typical HR office to do that well; the exceptions would be the really big departments with ample resources and expertise that hire many people under same job series on a regular basis. In other words, hiring might not be susceptible to effective scaling down.

The challenge is recalibrating the model of central HR policymaking with local decision-making and execution in such a way that HR can be done better. We’ve been studying the effectiveness of the HR workforce, and are finding that there’s great dissatisfaction among managers and agency leaders on what they are getting from their HR shops. It’s not necessarily the fault of the people in HR. The dissatisfaction may stem from the challenges intrinsic to the current decentralized model.

Gephart@FELTG.com

The Presidential Impeachment Inquiry and FELTG Training

,

By William Wiley, October 29, 2019

As the inquiry into impeachment continues on Capitol Hill, many talking heads and so-called experts are accusing those running the inquiry of being unfair. We here at FELTG love teaching moments. And the impeachment inquiry arguments provide a great opportunity for us to hammer home some basics about federal workplace investigations.

  • Secret interrogations. A number of media personalities are all bent out of shape that the House Intelligence Committee is questioning witnesses in private rather than in a public forum. Well, that’s the first hour of FELTG’s Workplace Investigations program. [Join us for our next Workplace Investigations Week, which will be held November 4-8 in Washington, DC.] Frankly, you shouldn’t have to attend the training to realize that when you’re investigating possible misconduct involving many witnesses, you don’t want the witnesses getting together and aligning their stories with each other. You want to hear each person’s independent view of events without reliance on what someone else heard or saw. Studies show us that when witnesses are exposed to the testimony of others, subconsciously they often draw details or judgments from that testimony. It’s not necessarily a conscious attempt to mislead. It’s just that we as humans in a neutral setting don’t want to seem out of step with what others are thinking. Were the committee’s investigative sessions open to the public, each witness possibly would have been influenced by the testimony of the previous public witnesses. That would undermine the validity of the investigation process, as we teach in our training classes.
  • Refusal to appear. It has been reported that a number of individuals who were subpoenaed by Congress were ordered by their supervisors not to comply with the subpoenas, to refuse to testify, and/or not produce the requested documents. One talk show expert stated that he would always advise his client to obey his supervisor’s order, or risk being fired. Well, that’s just the opposite of what FELTG teaches in its UnCivil Servant seminar for supervisors. If an employee is ordered to do something illegal, he should refuse to do it. As we sometimes say in class, “We can get you another job a lot more easily than we can get you out of jail.” Obedience to a supervisor’s directive does not shelter the employee from criminal prosecution. MSPB will refuse to uphold a removal for misconduct if it finds that the supervisor’s order was illegal. In addition, the Follow the Rules Act, passed in 2017, amended 5 USC 2302(b)(9) to allow an employee to refuse to follow an order he believes violates a regulation or agency rule – not just a statute.
  • Preliminary conclusions. As the chairman of the House Judiciary Committee walked out of a closed-door session last week, a reporter called out to him, “Do you have enough evidence to impeach yet?” The chairman, wisely, just kept walking without answering. The very LAST thing you want to do when conducting an investigation into possible misconduct is to reach a preliminary conclusion about what the outcome will be. The science is full of studies, as FELTG teaches in its investigations class, that show that simply suggesting a possible conclusion to an investigator before the investigation concludes skews the investigator’s results toward that conclusion. In one famous study, fingerprint experts who were preliminarily told that the prints being studied “probably” belonged to the suspect were 60% more likely to find that the fingerprints did indeed belong to that suspect. The conclusions of an investigation should not be made until all the evidence is in.

With all modesty, this is basic stuff. FELTG prides itself on getting the basics in place and then building up from there. We don’t do a lot of training on Capitol Hill or in CNN/FOX/MSNBC newsrooms, but we’d be happy to present a session. You can’t really reach meaningful conclusions about the hard bits if you don’t understand the fundamentals. Wiley@FELTG.com

SCOTUS Watch 2019: Does Title VII Cover Discrimination Based on Sexual Orientation or Gender Identity?

,

By Meghan Droste, October 22, 2019

The Supreme Court heard arguments on October 8 in what I am sure will prove to be three landmark cases: Altitude Express, Inc. v. Zarda, Bostock v. Clayton County, and R.G. & G.R. Harris Funeral Homes v. EEOC. The first two cases, which the Court consolidated for arguments, raise the issue of whether Title VII’s protections against sex discrimination prohibit discrimination on the basis of sexual orientation. The Harris Funeral Homes case raises the question of whether those same protections prohibit discrimination on the basis of gender identity.

These questions are settled law in the federal sector. The Commission concluded in 2012 that Title VII protects gender identity and in 2015 that sexual orientation is covered. Appeals courts were split, however, on these issues as they apply to private and public sector employees. For that reason, the Supreme Court is now poised to answer these questions for the entire country, and potentially reverse EEOC precedents.

The employees in these cases argue that “sex” as understood in Title VII must encompass discrimination on the basis of sexual orientation and gender identity. As the Commission found in the Macy v. Department of Justice and Baldwin v. Department of Transportation cases, the employees assert that these forms of discrimination inherently take into account their sex and, therefore, their employers discriminated against them “because of … sex,” as prohibited by Title VII. They also point to the idea of sex stereotyping, arguing, as the EEOC found, that these forms of discrimination may be due to stereotypes regarding who an individual should be attracted to and what reproductive organs men and women should possess. Finally, the employees pointed to the Supreme Court’s decision in Oncale v. Sundowner Systems, in which the Court rejected arguments that Congress could not have intended to prohibit same-sex sexual harassment, to argue that Congress’s understanding of sex, sexual orientation, and gender identity is not the correct question in these cases.

Those who observed the arguments have reported that it is unclear how the Court will come out on these cases. For example, while Justice Gorsuch appeared to find that taking an employee’s sexual orientation into account necessarily involves sex, he also cautioned against “massive social upheaval.”

I urge all federal sector practitioners to keep an eye out for the Court’s decisions in these cases. While the Court may issue them as early as January, I expect that we won’t see anything until closer to the end of the term in June. Droste@FELTG.com

FELTG Sets the Record Straight on Whistleblowing

, ,

By Deborah Hopkins and William Wiley, October 8, 2019

We’ve been reading and hearing a lot lately about whistleblowers, most recently about the Ukraine/Biden/Trump situation. We’re not here to discuss the merits of the complaint about President Trump’s conversation with Ukrainian President Zelensky, and we’re not here to discuss politics. We’re here to clarify that the media and numerous folks in Washington have (yet again) gotten a lot of things wrong in talking about this mysterious intelligence community whistleblower.

In discussions about the whistleblower’s motive for making the disclosure, one of the themes that keeps coming out is, “The whistleblower is a partisan.” Well, guess what? Even if that’s true, it’s irrelevant because when it comes to whistleblowing, the motive does not matter.

That’s right, whether a whistleblower makes the public aware of waste, fraud and abuse because he wants to save the world, or whether he does it to get the President impeached, the law protects him anyway, as long as he meets the legal requirements of whistleblowing.

To be protected a whistleblower must disclose:

  • Violation of law, rule, or regulation;
  • Gross mismanagement or gross waste of funds;
  • Substantial and specific danger to public health or safety; or
  • Abuse of authority.

While there is statutory protection and a Presidential Policy Directive (PPD-19) that covers whistleblowing by intelligence community employees, the Whistleblower Protection Act and the Whistleblower Protection Enhancement Act cover a large group of employees in the federal sector non-intelligence communities. That’s what we’ll discuss here today, because these are the statutes that apply to most FELTG readers.  [Editor’s note: House Democrats Ted Lieu (Calif.) and Don Beyer (Va.) recently updated and released a whistleblower guide for federal employees that you may find of interest.]

Let’s start with a little history lesson. Following the implementation of the Civil Service Reform Act (CSRA), a whistleblower’s disclosures were not considered protected if the employee’s “primary motivation” was not for the public good, but rather for was for his own personal motives. See Fiorillo v. Department of Justice, 795 F.2d 1544, 1550 (Fed. Cir. 1986). However, in subsequent years, the Federal Circuit determined it had improperly reached that conclusion because nothing in the CSRA requires an employee’s motives should be considered in determining whether a disclosure is protected. Id.; see also Horton v. Department of the Navy, 66 F.3d 279, 282-283 (Fed. Cir. 1995).

In 1988, Congress decided that a whistleblower’s motivation should not be considered, and that all employees should be encouraged to alert the public of waste, fraud and abuse. “The [Office of Special Counsel], the Board and the courts should not erect barriers to disclosures which will limit the necessary flow of information from employees who have knowledge of government wrongdoing.” S. Rep. No. 413, 100th Cong., 2d Sess. 12-13 (1988). Id.

As we said above, under 5 USC § 2302(b)(8), disclosures of information that the employee making the disclosures “reasonably believes” evidences certain kinds of wrongdoing are protected. The only time bias or motivation might enter the picture is in testing reasonableness of belief in blowing the whistle — and, warning, it’s an uphill battle. While bias and self-interest may be considered in testing the reasonableness of belief, bias alone does not determine that a whistleblower does not have a reasonable belief. LaChance v. White, 174 F.3d at 1381. Personal motivation, whether to save the world, ruin someone’s career, or something in between, does not per se affect reasonableness. Carter v. Army, 62 MSPR 393 (1994).

If “the employee is motivated by a desire to damage others’ reputations,” this fact alone is not dispositive, even though the whistleblower’s motives in making disclosures were to destroy his supervisor “during the course of an internal agency power struggle,” Fickie v. Army, 86 MSPR 525 (2000).

Separately, some in the press made a big issue that the whistleblower disclosed no first-hand information in the complaint, nor any other direct proof of the alleged impropriety that occurred in the President’s July 25 phone call. Again, that’s irrelevant as to whether the individual is a protected whistleblower. A whistleblower need only have a “reasonable belief” in the facts he is disclosing, not actual proof that the facts are as they are being described. In other words, if an individual is told something by a reliable source, and chooses to believe it because it makes sense to him, he is then protected if he discloses the believed facts in a whistleblower complaint. It’s the subsequent investigation of the complaint that is supposed to flesh out the facts based on credible evidence; it’s not up to the whistleblower to prove the allegations.

Some talking heads made an issue out of the belief that the employee is not a whistleblower because the alleged facts do not rise to the level of a crime. Well, federal employees are whistleblowers if they report things other than criminal activity; e.g., a simple abuse of authority or gross mismanagement will suffice to protect the discloser. The commission of a “high crime or misdemeanor” would be relevant to the impeachment process, but not to the status of being a whistleblower.

A lot of guests on talk TV have used harsh words to describe the whistleblower: traitor, spy, partisan hack, deep-state operative, rotten snitch, rat, back stabber, saboteur. In reality, a federal employee who believes that he or she has observed corruption committed by a government official is required by regulation to disclose that belief. A “basic obligation of public service” can be found at 5 CFR Sec. 2635.101

(a) Public service is a public trust. … To ensure that every citizen can have complete confidence in the integrity of the Federal Government, each employee shall respect and adhere to the principles of ethical conduct set forth in this section …

(b) …

(11) Employees shall disclose waste, fraud, abuse, and corruption to appropriate authorities.

Even if the individual personally did not want to disclose what appeared to be corruption being committed by a particular government official, the regulations mandates that a disclosure be made.

What does this all mean? It means Congress has afforded protections to whistleblowers higher than any other kind of protection in the civil service, and as long as the employee has a reasonable belief that the content of the protected disclosure is true, that whistleblower cannot legally be disciplined for making the disclosure – even if his goal was to make his boss look bad, get fired, or worse.

Hopkins@FELTG.com; Wiley@FELTG.com

 

And Now a Word With … Tristan Leavitt

,

Tristan Leavitt, General Counsel, Merit Systems Protection Board

By Dan Gephart, October 1, 2019

More than 200 employees work for the Merit Systems Protection Board in numerous regional and field offices across the country. But it’s the three offices that sit empty at the Board’s Washington, D.C., headquarters that have drawn the most attention.

It’s been more than seven months since then-Chairman Mark Robbins’ term expired. Robbins spent his last two years as the Board’s only member. The Board has lacked a quorum since January 2017 and, therefore, has been unable to issue final decisions on petitions for review for almost three years.

While those three offices on the MSPB’s Executive Floor sit dark, its career employees continue to toil away. We caught up with General Counsel Tristan Leavitt to find out what the MSPB has been doing – and what it has not been able to do – since former Chairman Susan Grundmann’s departure nearly three years ago, when the Board last had a quorum. Under the MSPB’s continuity of operations plan, Leavitt, as GC, has assumed the responsibilities for the executive and administrative functions vested in the Chairman.

Before joining MSPB a year ago, Leavitt was principal deputy special counsel at the U.S. Office of Special Counsel. He also worked for eight years on Capitol Hill, where he served on the staff of the House Oversight and Government Reform Committee and the Senate Judiciary Committee.

DG: Tell us about the work that continues on the adjudication side at MSPB.

LT: AJs have issued approximately 14,550 initial decisions since the Board first lost its quorum in January 2017. At that point, parties have two options. The first option is to submit a petition for review to the full Board, at which point MSPB’s Office of the Clerk dockets the appeal and MSPB’s Office of Appeals Counsel prepares a draft opinion for Board member consideration.

Of the approximately 2,325 PFRs currently pending at MSPB headquarters as of August 31, 2019, 2,180 have had draft opinions prepared by the Office of Appeals Counsel. (MSPB publishes these numbers monthly.) If a petition for review of an initial decision isn’t filed within 35 days, the decision becomes the final decision of the MSPB, at which point the appellant may appeal it to the U.S. Court of Appeals for the Federal Circuit or, in whistleblower cases, to any U.S. Court of Appeals in the country.

In addition, mixed cases may be appealed to a U.S. district court. MSPB’s Office of General Counsel continues to review such federal filings and represents the MSPB as necessary in litigation.

DG: How many PFRs involve back pay or attorney’s fees?

TL:  MSPB doesn’t track at an enterprise level which PFRs involve back pay or attorney’s fees, but 177 are PFRs or cross-PFRs from agencies, and of those, 95 involved the AJ ordering some form of interim relief in the initial decision.

DG: What other work does the MSPB continue to do?

TL: In addition to these various functions surrounding adjudicative work, MSPB’s Office of Policy and Evaluation continues to conduct research pursuant to the agency’s statutory mission to conduct studies of the merit system. [Editor’s note: We’ll have more on the MSPB’s studies in an upcoming article.] Although MSPB does not issue final studies without a quorum, the agency has conducted research and prepared a number of draft reports for an incoming Board to review and consider publishing.

MSPB has also continued to publish a regular newsletter and issue smaller publications on useful topics such as Remedying Unacceptable Employee Performance in the Federal Civil Service, Improving Federal Leadership Through Better Probationary Practices, and The Perceived Incidence of Prohibited Personnel Practices.

DG: What functions have been impacted most, other than the growing PFRs, over the course of this lack of quorum?

TL: Besides the Board itself issuing no decisions, the largest impact on the adjudicative side is the inability to issue stays in response to requests from the Office of Special Counsel. MSPB is also impacted in its studies function and on the regulatory side, where the agency cannot promulgate substantive regulations in the absence of a quorum.

DG: Is there a plan or structure in place so that when Board members are confirmed, they can most efficiently begin to tackle the backlog?

TL: Because the approach to the backlog ultimately is the prerogative of a Board itself, it’s difficult to make definitive plans at this point regarding how to tackle the backlog. Nevertheless, MSPB has taken a number of steps to prepare to swiftly carry out whichever approach a new Board settles on. A new Board will be able to see which types of cases are in the backlog and how old they are. Staff have also drawn up various plans for dealing with the backlog, which the new Board may adopt or modify.

Gephart@FELTG.com

 

And Now a Word With … The Hatch Act Unit

,

By Dan Gephart, September 10, 2019

It’s always interesting when federal employment law makes its way into mainstream conversation. After Kellyanne Conway’s failure to understand and comply with the Hatch Act made headlines, people who have yet to figure what kind of work I do were telling me about the Hatch Act.

Back in a previous life, I edited a book on compliance with the Hatch Act. In terms of length, the book was less Stephen King’s The Stand and more Shirley Jackson’s The Lottery. And like those aforementioned stories, the Hatch Act, which originally became law in 1939, had an element of horror: The punishment for Hatch Act violations was termination.

Then in 2012, the Hatch Act was updated to allow more discretion in punishment, along with several other provisions. This made sense. Some Hatch Act violations are more severe than the others. Thanks to the change in the law, the rise of social media, the overt politicization of almost every aspect of our lives, and the increasing divide in the country, the Hatch Act has become a lot more difficult to navigate.

However, you do not need a book to get your answers. The Office of Special Counsel oversees the Hatch Act. Its Hatch Act Unit, led by Ana Galindo-Marrone, handles all matters related to the law, and provides regular guidance. All you need to do is ask. If you are seeking advice about your political activity or the activity of another employee, under the Hatch Act, you may request an advisory opinion from OSC by calling (800) 854-2824 or (202) 804-7002. You can also email the Unit at hatchact@osc.gov.

Thank you to Ana Galindo-Marrone and her team at the Office of Special Counsel’s Hatch Act Unit for answering our questions.

DG: Must a federal employee’s personal social media account be free of any reference to their governmental position if they expect to post political content?

OSC: No. The Hatch Act does not prohibit employees from including their governmental position in the biographical information section of their social media account, even if they post political content on that account. However, if the employee is using the account for official purposes, the employee should not engage in political activity on that account.

DG: What Hatch Act violations are you seeing in this political cycle that are new or unexpected?

OSC: We are seeing more violations involving employees engaging in political activity in their official capacities, whether on official social media accounts or in the performance of their official duties. We also have received more complaints about employees openly stating or displaying their support or opposition to a candidate in the workplace.

DG: If a federal supervisor thinks one of her employees is in violation of the Hatch Act, what should she do?

OSC: Federal supervisors can call OSC’s Hatch Act Unit to discuss whether the employee’s activity violates the Hatch Act, and if so, the best course forward.

DG: If a federal employee’s relative is running for office, what are the limitations on the assistance a federal employee can provide to the campaign?

OSC: It depends on whether the employee is less restricted or further restricted. Less restricted employees, which are the majority of the federal workforce, generally may provide support to a relative’s campaign, as long as they do not:

  • Engage in any campaign-activity at work, including using social media or email.
  • Fundraise for the campaign by any means.
  • Use their position to assist the campaign by, for example, involving subordinate employees in the campaign or engaging in campaign activity in their official capacity.

Further restricted employees generally are those employed in intelligence and enforcement-type agencies or who hold certain positions, such as career SES. They may not take an active part in partisan political campaigning, which means they may not engage in any activity in concert with a political party or candidate for partisan political office (e.g., working as a campaign volunteer, distributing campaign materials, circulating nominating petitions, etc.). In addition to the limitations placed on less restricted employees, further restricted employees may not provide assistance to a relative’s campaign if such assistance is done in concert with the campaign. They may, however, make a monetary donation to the campaign, appear in a family photograph that is used for campaign purposes, or accompany the candidate to a campaign-event. Gephart@FELTG.com

Question of the Day: Why Do Agencies Discipline?

,

By William Wiley, August 28, 2019

Every now and then, I’ll make a statement in a class, and some bright student will say: “Where did you get that?” If the issue has to do with something recent, often I am able to find a citation to a case decision or perhaps a regulation that resolves the question. But every now and again, I get a question about something that is so fundamental I can’t remember (nor find) where I got it.

For example, recently I was looking through some old Board decisions that made me ask the question: “Why do we discipline?” For many years, I have taught that the purpose of discipline is to correct behavior and prevent future occurrences, not to punish for the sake of retribution or extracting pain from the employee simply for the sake of extracting pain. However, when I tried to find the source of that answer, I found very little. The Merit Systems Protection Board doesn’t seem to have addressed the question. The Office of Personnel Management has some very nice regulations relative to the procedures by which discipline can be taken, with the admonition that it can only be taken for reasons that support the efficiency of the service. But that doesn’t really tell us much.

The answer to this question seems so fundamental that I am absolutely blown away that I cannot find what answer might be. And the answer is absolutely critical to assessing some of the actions taken by MSPB. For example, in 2015, the Board upheld the mitigation of a removal to a 180-day suspension (based on the mitigating circumstance of the employee’s medical condition). The employee’s misconduct was falling asleep at work. If the purpose of discipline is to correct misbehavior, does the Board really believe that a six-month suspension is necessary to motivate a sick employee not to be sick? In another decision a couple of days earlier, the Board concluded that a 30-day suspension was somehow appropriate for an individual suffering from major depressive disorder. I just cannot understand how that motivation could possibly be the right answer. See Banks v. DVA, CB-7121-15-0006-V-1 (Feb. 27, 2015)(NP), Bowman v. SBA, 2015 MSPB 18.But if that’s not the answer, what is? If we are not trying to correct behavior through negative reinforcement, then what the devil are we doing by disciplining employees? Would someone out there with a paygrade above mine (and as my pay grade is effectively GS-zero, so that includes everybody), please answer this question? If the purpose of discipline is to correct behavior, then the Board was absolutely crazy to be mitigating removals to 60-, 90-, 120-, and 180-day suspensions. There has never been a study nor is there a principle of psychology that supports discipline to correct behavior at this level of punishment. If there is another purpose for discipline, it would be terrific if we all knew what that was so that supervisors could take that into consideration when analyzing the Douglas Factors. Wiley@FELTG.com

A Two-for-One Removal

,

By Deborah Hopkins, August 6, 2019

Here’s a scenario that came across the FELTG desk a few days ago:

Dear FELTG,

Let’s say, hypothetically, an agency has an employee who failed a PIP/demonstration period last week, and the agency is finishing up drafting his proposed removal.

Meanwhile, let’s say the supervisor sent an email to the employee pointing out his failure to submit leave requests as previously instructed and asking him to send them immediately. Instead of sending them, he calls the supervisor and unleashes a tirade – lots of “G-d damn,” “f*!king,” “sh!t,” screaming at the top of his lungs and calling the supervisor names. The supervisor’s door is closed, but the employee is on speakerphone, and people across the hall – also with their office doors closed – hear the tirade and are almost as upset and shocked as the supervisor.

The supervisor wants to do a misconduct removal, and considering the fact that the employee was just suspended for five days for similar inappropriate conduct towards a coworker, that’s probably not unreasonable. Also, the employee still hasn’t submitted those leave requests as instructed. In any event, some kind of discipline is warranted.

What should the agency do with the disciplinary proposal since a performance removal is imminent? Hold one in abeyance while the other is processed? Propose them both at the same time? It might be tempting to just forget about the discipline (since they’re removing the employee anyway), but what if the agency didn’t want to do that?

Sincerely,

Anonymous

 

And here are FELTG’s thoughts on the scenario:

Good to hear from you, Anonymous, and thanks for the hypothetical. This imaginary person has just made your case for removal even stronger.

The agency can issue one proposed removal letter with two sections: one for conduct and one for performance. I would start off with a subject line of Proposed Removal for Misconduct and Unacceptable Performance, and start the letter something like this:

By this letter I am proposing your removal for Conduct Unbecoming [or whatever you call that profanity-laced tirade], AWOL [for the amount of time not covered by a proper leave request], and for unacceptable performance, based on the below:

Then I’d make very clear in the letter where the conduct section starts and ends, and where section for the performance removal starts and ends. In the attachments of materials relied upon, be clear what materials relate to the conduct removal (such as Douglas analysis, any evidence, affidavits, etc.) and which relate to the performance removal (such as failed PIP assignments).

You don’t want to confuse the processes for yourself, or the employee, so you’ll need to be organized in the letter.

Also, if the Deciding Official concurs with removal, you’ll want to split out the decision sections for conduct and performance clearly as well. It would also be wise to include in the decision letter something to the effect of, “Removal is an appropriate penalty for the conduct issue alone, and for the performance issue alone.” Only if it’s true, of course. That way even if for some reason you lost one, you would still have the other one.

As a quick point, in the FELTG world this employee would not have had the chance to be confronted about leave requests and subsequently act disrespectfully to the supervisor the week after he failed the demonstration period (DP). Why, you ask? In our classes, we teach that if it looks like the employee is not going to succeed during the DP, the supervisor can begin to draft the proposed removal letter during the DP, based on the incidents of poor performance, so that the letter can be issued the day after the end of the DP. Immediately after we give the employee the proposed removal, we put the employee out on Notice Leave so he’s no longer in the workplace. That’s the ideal situation, if you are aggressive in your approach. And we like aggressive.

Hope this hypothetical helps. Good luck! Hopkins@FELTG.com

The information presented here is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.