Mark Robbins Appointed as OPM General Counsel

OPM Press Release

FOR IMMEDIATE RELEASE
Friday, December 21, 2018
Contact: Office of Communications
Tel: 202-606-2165

Mark A. Robbins appointed OPM General Counsel

WASHINGTON – Office of Personnel Management (OPM) Acting Director Margaret Weichert announced today that Mark A. Robbins will serve as OPM’s new General Counsel.  Consistent with 5 USC § 1201, President Trump has issued a memorandum directing Mr. Robbins, current Acting Chairman of the U.S. Merit Systems Protection Board (MSPB), to serve concurrently as OPM General Counsel.

Mr. Robbins previously served as OPM General Counsel from 2001 to 2006. He has also served as the General Counsel of the U.S. Election Assistance Commission and as a Senior Rule of Law Advisor for the State Department in Babil Province, Iraq, where he was awarded the U.S. Army’s Commander’s Award for Civilian Service. Mr. Robbins was Executive Director of the White House Privacy and Civil Liberties Oversight Board between 2006 and 2008.  He worked in private practice as a litigation attorney in Los Angeles, California between 1988 and 2000, and in the White House Office of Presidential Personnel from 1984 to 1988. Mr. Robbins began his career as a Legislative Assistant to two Los Angeles area Members of Congress, covering, among other things, civil service and federal human resources management issues.

“I’m very excited that Mark is returning to OPM,” said Acting Director Margaret Weichert. “Mark brings extensive professional experience that will help OPM deliver mission outcomes that will help advance the President’s Management Agenda.”

Mr. Robbins earned his undergraduate and law degrees from George Washington University. He is a member of the California and District of Columbia bars. In recognition of his extensive professional involvement and continued leadership in public administration, in 2013 Mr. Robbins was elected as a Fellow of the National Academy of Public Administration.

The Top 10 FELTG Newsletter Stories of 2018

This is the last scheduled FELTG Flash of the year, and we here at FELTG Headquarters wanted to use the opportunity to thank all of you — our great attendees, customers, and readers — for making this past year so successful. Together we learned a lot, and we laughed quite a bit, too, as we set about making the government’s accountability systems more efficient.

That’s not to say that it wasn’t an interesting year.  More people ate Tide Pods than we had decisions from the MSPB. Now, we don’t know how many people actually ate Tide Pods, but based on the news coverage it appeared to be dozens. All it would have taken was one to outpace the MSPB, which issued zero decisions this past year.

Will that change in 2019? Will the Administration try to shut down the Board? What will happen with MERIT Act? What will EEOC priorities be in the coming year? What will become of President Trump’s Executive Orders?

Whatever happens, you can count on FELTG to be there. We are especially proud of our talented group of instructors, including Barbara Haga, Katherine Atkinson, Ricky Rowe, Meghan Droste, Anthony Marchese, Shana Palmieri, and those who joined the team in 2018 — Dwight Lewis, Ann Boehm, and Joe Schimansky. Former president Ernest Hadley will be doing training with us in 2019. And while we wish our outgoing president William Wiley a happy retirement, we’d like to point out that Bill is not really going away. You’ll see him at MSPB Law Week and other FELTG events throughout the year. It’s going to be a great year.

Before we turn the page on 2018, let’s take a quick look at the 10 most popular articles (based on number of reads and forwards) from the FELTG Newsletter in the past year.

Unless any major stories break before then, we will see you all again in the new year, where we will once again work together to help make the federal government a model workplace. Best wishes to all for a happy and successful 2019.

A No-Good-Option Situation

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By William Wiley, December 11, 2018

Here at FELTG, we pride ourselves on knowing the way out of most every civil service law difficulty. Some answers take more steps than we’d like, but eventually we can help a supervisor get her hands around just about any difficult employee situation. Recently, however, we got asked for advice regarding a problem employee case, and although we’ve come up with a solution, we really don’t like it very much. See if you can do better than we did.

  1. The employee has developed both mobility and concentration problems. She falls down at work even though she uses a walker. On three occasions, coworkers have had to call paramedics to her aid. She cannot carry the files she needs to do her job. She cannot carry her personal belongings to her desk. She relies on coworkers to do the carrying for her. She makes mathematical errors in her timekeeping work. She is late accomplishing tasks.
  2. Her supervisor informed her that her medical limitations were preventing her from performing her job satisfactorily and asked if she would obtain a medical evaluation of her disabilities by her physician to identify any accommodations that could be made. Her physician responded that she was medically able to perform all of the essential functions of her position.
  3. After the medical evaluation, she continued to be unable to perform her work without the assistance of coworkers and otherwise in a satisfactory manner. Her supervisor again requested that she obtain disability accommodation information from her physician. The employee failed to do so.

That’s where we got the call for help. In the old days, the answer was easy: Send her for a fitness for duty evaluation by an agency-selected physician who is not likely to rubber stamp that she can do her job. Obtain a more realistic evaluation of her limitations, determine whether they can be accommodated, and assuming that they cannot, remove her for Medical Inability to Perform.

Unfortunately, today we don’t have that option. As you know if you’ve been to our famous FELTG Absence, Leave Abuse, and Medical Issues Week seminar (next offered March 25-29), OPM abolished the fitness for duty regulations back in 1983. Since then, agencies have been without the authority to direct an employee to undergo a medical evaluation except in three limited situations, none of which apply in this case. The FFD option has been foreclosed.

To our read, that leaves the supervisor with two options, neither of which feels particularly good:

  1. In spite of the employee’s physician’s determination that she can perform her duties, reach the conclusion that she cannot based on a lay person’s observations of her limitations. Determine that she is medically unfit to perform one or more essential functions of her position and fire her for Medical Inability to Perform. Or,
  2. Document her failures at work, relate them to one or more critical elements, then initiate a performance demonstration period (PIP) to give her an opportunity to perform. Document her failures during the demonstration period, then fire her for Unacceptable Performance.

Option A runs the risk of lay evidence of medical inability being contradicted by the employee’s physician’s professional opinion that the employee has no medical limitations. Option B seems cruel in consideration of the employee’s obvious medical infirmities. If the employee would accept Option A, she’s almost guaranteed a disability retirement when she applies to OPM. If the agency decides it has to go with B, there’s no similar almost-guaranteed disability retirement.

Here at FELTG, we feel bad for the employee. We also feel bad for the supervisor. It’s just a darned shame that OPM believes it has to constrain an agency’s ability to require an employee to undergo a medical examination. EEOC has said that it is legal for an employer to require an employee to undergo a medical examination if it has a reason for doing so that comports with a “job-related business necessity.” Were that the standard that OPM would allow us to apply, it would yield a much better resolution than either A or B, above. Wiley@FELTG.com

Somebody Should Make These HR Policy Decisions

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By William Wiley, November 14, 2018

I’ve been making improvements in the civil service since before some readers could even spell MSPB or FLRA. In the accompanying photo, you will see me helping unpack the very first computers delivered to FLRA when I was the chief of staff for the General Counsel. Note the high degree of excitement. They were color monitors! I took a lot of heat from the purchasing staff when I insisted on color, reasoning that it was the future of computing. I can still hear them complain, “What’s wrong with black and green, Mr. Wiley?!?” Yes, sometimes you have to be a little pushy to make good change happen.

I hope that some of you readers feel a bit pushy, because the federal workplace still needs innovation. A lot of what you do in your civil service law workplace, and what we teach here at FELTG, is controlled by employee accountability law or regulation: preponderant evidence to fire for misconduct, performance ratings at least annually, 30 days of pay between a proposal to fire and the firing itself. These are decisions made by Congress and OPM. We are bound to them whether we agree with them or not. They are our civil service law.

However, there are other areas of Human Resources that are related to accountability that are not defined by law or regulation that are just as important. And as far as we can tell, these are decisions being left to individual supervisors to make in most every agency, and which would no doubt benefit from a reasoned choice between options and the developmental of formal policy. Here are three:

1 – Performance Rating Distribution – Every supervisor officially rates individual performance within a group of subordinate employees once a year. Which of these possible alternatives is the better policy option?

  • Most all employees get the top rating because by merit selection, we have hired into the government the best and the brightest.
  • Very few employees should receive the top rating as high performance is exceptionally rare in government. In fact, top ratings should be mathematically limited from year to year and dispersed among those who haven’t received one recently

2 – Discipline for Repeated Misconduct – Every supervisor has the responsibility to propose or implement discipline for employee misconduct. Which of these possible alternatives is the better policy option?

  • Discipline should be corrective. If a repeat offender has been reprimanded, then suspended, removal is warranted for the next incident because he has demonstrated that he does not respond to discipline by correcting his behavior. The civil service does not need to retain individuals who do not respond to discipline.
  • Discipline should be punitive. Repeat offenders need not be fired necessarily as each incident of discipline (aka punishment) extracts an eye for an eye. Just because an individual repeatedly violates workplace rules and does not respond by correcting her behavior is not a reason to fire her.

3 – Substantial versus Preponderant Evidence – Management has to defend every removal action by some quantum of proof when the removal is challenged on appeal. Which of these possible alternatives is the better policy option?

  • Substantial evidence: It is possible that the employee deserves the discipline. This is already the law for performance-based removals throughout government and for both performance and misconduct removals at the VA. The law allows an agency to use this level of evidence for reprimands and suspensions. It is exceedingly easy to prove a removal is warranted at this level (the Supreme Court says this burden is a “grain more than a scintilla”)
  • Preponderant evidence: It is probable that the employee deserves the discipline; more likely than not. By law, this is the mandatory burden of proof that agencies (other than VA) must attain to fire an employee for misconduct. Requiring this level of evidence will prevent more removals than would the substantial level of evidence.

Opinions as to which of these options is best are strong on both sides.

  • Congress routinely rails, and the media frequently howls, when statistics show that most federal employees get the top performance rating. At the same time, for 40 years the law has precluded an agency from comparing employees to each other when rating an individual’s performance.
  • We often recite the mantra that “discipline is corrective, not punitive,” but I could not find that as policy anywhere on the web other than on a union’s website. GAO issued a report this summer that was critical of agencies that suspend employees more than once, suggesting a a removal should follow a suspension. Yet, the Merit Systems Protection Board has mitigated removals to second suspensions and imposed 90-120 suspension in lieu of removals without any evidence that long suspensions like that are somehow more corrective than shorter ones.
  • Although preponderant evidence is legally mandated only for removals, demotions, and long suspensions, agencies often incorporate that standard into lesser suspensions and reprimands. Arbitrators routinely apply the “just cause” standard to all discipline, a level commensurate with preponderant evidence according to the literature. At the same time, government agencies are routinely criticized for letting employees “get away” with public misconduct.

Here at FELTG, we certainly have our opinions as to which of these options is the better. However, it is not our role to make these policy decisions. So, whose is it? Is it OPM’s? If so, why haven’t they done it? Is it the head of your agency? If so, do you see these issues addressed in agency directives? How will you coordinate with everyone else in your agency to make sure that everyone is working from the same principles and beliefs?

When you want a team to work together – football, synchronized swimming, or a military unit – you put the individuals in uniforms and make centralized decisions. Somebody in government should be making these decisions centrally and applying the selected options uniformly. Otherwise, you’re just a bunch of smart people working in your own little world, choosing from among options that have good arguments on both sides.

By the way, if you REALLY want FELTG to make these decisions for you, we are happy to oblige. Just send us your requests, along with appropriately dedicated funding, and we’ll delighted to write your policies for you. We’ve even set up a sub-component just to provide this service: the Department of Accountability and Discipline. If you can’t decide for yourself how the government should be run, just leave it up to our DAD. Wiley@FELTG.com

Once Again, MSPB Nominees Fail to Get a Vote: What Happened Today? What Happens Next? 

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By William Wiley, Deborah Hopkins, Dan Gephart, November 28, 2018

 

The MSPB is hanging by a thread.

This morning, the Senate Committee on Homeland Security and Government Affairs recessed without voting on the three US Merit Systems Protection Board nominees. Sen. Ron Johnson, the Committee Chairman, told reporters that he decided to not bring up a vote after a 7-7 roll call vote on member Andrew Maunz. There was not a roll call vote on either of the two other nominees.

Wait, you wise FELTG readers are probably saying, “Doesn’t the committee have 15 members? And don’t Republicans have the majority?” Per a source, Sen. Rand Paul voted no by proxy, depriving the majority of an 8-7 vote. Sen. Paul opposes the existence of the MSPB, according to the source.The nominations of Chairman Dennis D. Kirk and Members Julia A. Clark and Maunz will be returned to the administration without a vote and the nomination process will have to begin all over again with a new Senate in January.

Meanwhile, more  than 1,500 cases in the MSPB backlog will go unaddressed. By the time the new Board members, hopefully, get confirmed sometime next spring, there will probably be about 1750 cases waiting to be adjudicated.

Hopefully is the critical word. Sen. Johnson, according to a source, will not review the nominations if they are resent next year unless he can get Sen. Paul or a Democrat to change their minds.Remember: Acting Chairman Mark Robbins, the sole remaining member of the MSPB, turns into a political pumpkin at midnight on March 1. His term will expire, and he cannot be renewed or held over any longer. Unless a miracle occurs in February, it’s likely that come March, the Board will be without any members for the first time in history.Meanwhile, FELTG has been told that there is a legal opinion floating around that if Robbins leaves and no Senate-confirmed Article II person is on board to replace him, then the MSPB as an agency goes out of existence.

Before today, not one nominee to be a member of MSPB was rejected at the committee level in the Senate. Today, that happened to three nominees. It is impossible to predict what will happen next, other than that the federal civil service will continue to suffer and employee appeals will continue to disappear into the gapping void that was formerly the US Merit Systems Protection Board.

These are sad times, indeed, for the federal civil service. With respects to John Donne: “No federal employee is an island, entire of itself; every employee is a piece of the civil service, a part of the main. If a single employee be washed away by the loss of oversight protections, the federal civil service is the less, as well as if an entire agency were, as well as if a position of thy friend’s or of thine own were: any employee’s loss of rights diminishes me, because I am involved in the civil service, and therefore never send to know for whom the bells tolls; it tolls for thee.”

A Holiday Party, Too Much Alcohol, and Poor Decisions

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By Barbara Haga, November 26, 2018

Holiday parties will be held soon and, inevitably, there will be some bad behavior that goes along with them. It seemed prudent to look at a 2017 case that involved all of the items mentioned in the title and a subsequent removal sustained based on them. It is an interesting case that includes the issue of contact between coworkers, not a supervisor per se, he said/she said explanations of what happened, and the use of a general charge of conduct unbecoming. I’m guessing this one may be in that pile of over a thousand petitions for review, but for now let’s see how the AJ ruled.

The case is Doe v. Air Force, DA-0752-16-0100-I-2 (2017). The appellant asked that the case be processed anonymously, and the agency requested that the names of the witnesses be protected. There are three primary players in the case – Doe, his girlfriend, JD, and the person who reported unwanted sexual contact, KB.

Doe was an Air Traffic Control (ATC) Specialist (Terminal), GS-2152-12, working for the Air Force in Oklahoma. He was a former active duty Air Force ATC. JD and KB were also ATCs, except KB was a military member. JD had worked on the same shift with Doe, but once they started dating, she moved to another shift per management’s direction. Doe and KB worked on the same shift. All three were good friends, as stated in the decision. KB was married, but her husband was out of town during the events recounted in the decision.

The 2014 Holiday Party

The events that led to the removal began with the holiday party at a local restaurant and banquet hall. Doe, JD, and KB sat together at the party. From the decision, it is clear that there was a significant amount of drinking throughout the evening and into the next morning. The party at the commercial facility ended and progressed to an after-party in a co-worker’s barn. Later in the evening, the after-party got out of control and the owner ended the party. The owner specifically asked Doe to get KB out of the after-party because “she was out of control and making everyone uncomfortable.” The owner told him that people reported seeing KB kissing another female airman. Doe acknowledged in a statement in response to the proposed removal that KB lacked judgment because she kissed him and JD on the mouth in front of others at the after-party.

Doe arranged for transportation home from the after-party for himself, JD, and KB. The driver stopped at Doe’s house, and everyone went in and continued to party. For an unexplained reason, KB did not continue on with the driver when he left and instead remained in Doe’s house. JD prepared to go to bed and apparently slept through everything that happened thereafter. KB ended up in the bed with JD and Doe.

What occurred next depends on whose version you find more credible. There was either no sexual contact or unwelcome sexual contact. KB eventually called another coworker and his wife to pick her up and take her home after the incident. She called her husband and told him her version of what had happened and reported the contact to her First Sergeant the next day.

Charge and Specifications

The removal — effective in October 2015 — was based on one charge of conduct unbecoming. The specification read as follows:

On or about December 7, 2014, approximately between the hours of 0100 and 0300 hours, you brought Senior Airman (SrA) KB, a junior enlisted Airman, to whom you provided training and on-duty supervisory oversight, to your home. SrA KB was intoxicated from consuming alcoholic beverages. You initiated unwelcome sexual contact with SrA KB in your bed. To wit: While SrA KB was in your bed you kissed her stomach and vaginal area before digitally penetrating her vagina. DNA evidence confirmed she was in the bed in which you sleep, the same bed in which the unwelcome sexual contact occurred. Because of your actions, SrA KB required premature relocation away from Vance Air Force Base to another Air Force Installation in another state. Your conduct was improper and harmed the efficiency of the service.

Credibility

In this 21-page decision, there are roughly nine pages of discussion regarding credibility. The AJ acknowledged that KB was not the “model” airman, but the AJ found KB’s version of the events more credible than Doe’s. If you want to read a very detailed accounting of the AJ’s view of each version of the events, this is a good analysis.

Doe’s Job Duties

In many agencies, the first reaction to the report of this type of conduct would have been that there was not sufficient nexus between the misconduct and Doe’s position to be able to take an adverse action. Some would view this as being outside the range of actionable misconduct because Doe was not classified as a supervisor and clearly not her supervisor. The events recounted were entirely a matter of off-duty misconduct between coworkers, one civilian and one military. However, the Air Force successfully showed that there was a nexus and that the behavior was unbecoming.

The Air Force policy on personal relationships, “Dress, Appearance, and Relationships,” provided:

4.4. Relationships. While personal relationships between Air Force employees or between Air Force employees and military members are normally matters of individual choice and judgment, they become matters of official concern when they violate existing law or impede the efficiency of the service.

4.4.5. Actions in Response to Unprofessional Relationships. When unprofessional relationships impede the efficiency of the service or adversely affect the mission, appropriate corrective action should be taken IAW AFI 36-704.

The AJ noted that the Board generally recognizes three independent means by which an agency may show a nexus linking an employee’s off-duty misconduct with the efficiency of the service: (1) a rebuttable presumption of nexus that may arise in “certain egregious circumstances” based on the nature and gravity of the misconduct; (2) a showing by preponderant evidence that the misconduct affects the employee’s or his co-workers’ job performance, or management’s trust and confidence in the employee’s job performance; and (3) a showing by preponderant evidence that the misconduct interfered with or adversely affected the agency’s mission. (Kruger v. Justice, 87 FMSR 5004 (1987)).

In this case, the AJ found that the record showed that there was impact on Doe’s job performance. While he was not a supervisor in the classification sense and was not in the military chain of command over KB or other military ATC’s, he performed the duties of a senior level ATC, and those duties required a high level of trust and interaction between him and his co-workers. Because of Doe’s level of experience, he was required to occasionally perform the duties of a controller-in-charge. While performing the duties of a controller-in-charge, the appellant was responsible for the entire Radio Approach Control operation. This included monitoring, and intervening if necessary, in the ATC’s handling of air traffic in and around the base. At any given time, there could be as few as one or two ATC’s handling air traffic, or dozens. During his duties as an ATC, and in an ad-hoc supervisory role as the controller-in-charge, he had to perform these critical duties in two-person teams while controlling many flights.

The deciding official testified that “… it was essential that ATCs not have any distractions because of personal conflicts, animosity of others, or any other type of anxiety.” He testified that it is of paramount importance that the ATCs are focused solely on controlling the (air) environment and keeping planes from running into each other. He explained that anything that would result in an ATC doubting his co-workers or his leadership could result in “taking attention away from their responsibility of monitoring the ‘very complex’ puzzle air traffic on their (radar) scope, which could be devastating.”

Lessons from the Decision

Clearly there were a series of poor decisions on both Doe’s and KB’s part in this unfortunate situation. The deciding official’s testimony noted that Doe never took responsibility for his actions, and that led to a conclusion that there was little potential for rehabilitation. In spite of a policy that talked about personal relationships that could become matters of concern, Doe made choices, in the agency’s view, that were inconsistent with his duties as a trainer and controller in charge. That resulted in a loss of confidence in his ability to meet his job’s requirements.

I hope you don’t have any repercussions from any holiday parties attended by employees of your agency this year. Before the party begins, consider this gentle reminder: After the party when the alcohol wears off, the party clothes are put away, and everyone is back in their appointed places, you still have to be able to look each other in the eye and work together – coworkers and supervisors alike! Haga@FELTG.com

OPM Clarifies the No-Clean-Record Executive Order Provision, Part 2

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By William Wiley, November 6, 2018

As we discussed last week, one of the Executive Orders (EOs) issued by the White House on MAY 25 effectively did away with an agency’s ability to resolve an employee controversy by entering into a “clean record” settlement agreement. There are several problems with that new limitation. On October 10, OPM issued “Interpretative Guidance” to address one of the problems.

That problem is that the EO left no room for exceptions. When a document was placed in the employee’s personnel record, it could not be removed as part of an agreement with the employee. No exceptions. Well, upon reflection, OPM advises us that there are indeed two exceptions to this iron-clad no-clean-record rule:

Corrective Action Based on Discovery of Agency Error  

Section 5 requirements should not be construed to prevent agencies from taking corrective action should it come to light, including during or after the issuance of an adverse personnel action, that the information contained in a personnel record is not accurate or records an action taken by the agency illegally or in error.

Corrective Action Based on Discovery of Material Information Prior to Final Agency Action

When persuasive evidence comes to light prior to the issuance of a final agency decision on an adverse personnel action casting doubt on the validity of the action or the ability of the agency to sustain the action in litigation, an agency may decide to cancel or vacate the proposed action.

Practitioners on both sides have expressed relief at OPM’s providing exceptions to the EO. You see, every practitioner we’ve spoken with – union or management, attorney or HR specialist – would like to be able to settle cases by agreeing to a clean record. An analogy to the criminal justice system helps us understand the gravity of the EO’s restrictions. Just think what it would be like in the judicial system if charged individuals could not take a plea bargain. These two provisions give at least a little ground for the practitioner to stand when arguing that a document should be removed from the employee’s e-OPF. Besides, these agreements have to be self-reported to OPM annually. There is no oversight to this process. We all learned in elementary school that we get higher grades when we grade our own papers.

At the same time, the EOs’ restriction and OPM’s “clarification” really do not make a lot of practical sense in some ways:

  • The EO says that adverse documents may not be removed from the “employee’s official personnel records.” The only record that meets that definition is the employee’s Official Personnel File, aka the e-OPF. That’s the only employee file that travels everywhere with the individual and lasts forever, into retirement and beyond, perhaps into heaven or hell for all we know, amen.
  • Agencies sometimes maintain separate Employee Relations files or Discipline files. However, strictly speaking, those are not an employee’s “personnel records” because they stay with the agency. They do not follow the employee as he moves from one agency to another. They are “agency” files, not an employee’s “official personnel record.”
  • There are three documents created when an agency fires an employee:
    1. Notice of proposed removal
    2. Decision to remove
    3. SF-50 that effectuates the decision to remove
  • Only the third document is routinely placed into the e-OPF. The first two, if retained at all, are retained in files in human resources. Therefore, there is good argument that the EO restricts agencies from removing an SF-50 from the employee’s e-OPF, but does not affect the retention or deletion of the other two documents: the proposal and decision.

OPM’s clarification, however, seems to take a broader view. It talks about prohibiting the removal of documents in a “personnel file,” not just the employee’s official personnel records. Does that mean that the agency is prohibited from deleting the proposal and decision memos even if an SF-50 is never generated (because the employee resigns)? Who knows?

Separately, both the EO and the OPM memo refer to prohibiting an agency from removing these documents in only three situations:

  1. In response to an employee complaint,
  2. When settling an appeal or grievance initiated by the employee, or
  3. Resolving an employee-initiated action.

That leaves open the question: If there is no employee-initiated complaint/grievance/appeal and the employee simply asks that the documents be removed, does the EO prohibit removal in that situation?

Bottom line: The OPM memo gives the agency a reason to remove documents in a certain limited situation which the EO did not. However, this whole thing is still a mess. Agencies are all over the place interpreting what it means. Gee, don’t we wish that there was a tiny little training company who could provide better guidance than what we have so far? Only time will tell if there is. Wiley@FELTG.com

OPM Clarifies the No-Clean-Record Executive Order Provision

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By William Wiley, October 30, 2018

One of the Executive Orders (EOs) issued by the White House on May 25 effectively did away with an agency’s ability to resolve an employee controversy by entering into a “clean record” settlement agreement. As background, here’s how life works in the federal workplace when it comes to taking adverse actions against employees:

1 – The agency proposes, then decides to implement an adverse action … say, a removal.

2 – The employee exercises his right to challenge that removal by filing an appeal, complaint, or grievance.

3 – Neither the employee nor the agency really wants to go through the appeal/complaint/grievance process. These procedures are expensive, time-consuming, lengthy, confrontational, and of uncertain outcome for both sides. Therefore, both management and the (former) employee have a strong incentive to settle the matter without litigation.

4 – Employees often just want to get on with their lives. They really don’t want to return to the agency that fired them. Agencies don’t really care what happens to the employee after he is gone, they just want him gone, never to return.

5 – Employees perceive that they will have a challenge getting on with their lives if it is documented in their official personnel file (OPF or e-OPF) that they have been fired. Therefore, as part of a settlement negotiation, the employee will ask that the SF-50 personnel form documenting his removal be removed from his e-OPF. Hence, the term “clean record.”

6 – Agencies don’t care if the employee’s record is clean. They know him and he is never getting rehired at that agency regardless of what’s in his e-OPF. If another agency is stupid enough to hire the employee without calling the previous-employing agency to check up on the employee’s work history, things not necessarily in the e-OPF, then that’s their problem. Agreeing to provide a clean record is a powerful bargaining chip that agencies have in settlement discussions because, in the agency’s opinion, they cost the agency nothing.

According to the recent EO, this widespread practice is bad for government. The belief appears to be that somehow by keeping this adverse information out of the e-OPF, future agency employers are disadvantaged. The future employer might hire the formerly fired individual without knowing about his previous bad work history. So, the EO requires that this practice be abandoned. Section 5 of Executive Order 13839 of May 25, 2018, Promoting Accountability and Streamlining Removal Procedures Consistent with Merit System Principles, provides as follows:

Sec. 5. Ensuring Integrity of Personnel Files. Agencies shall not agree to erase, remove, alter, or withhold from another agency any information about a civilian employee’s performance or conduct in that employee’s official personnel records, including an employee’s Official Personnel Folder and Employee Performance File, as part of, or as a condition to, resolving a formal or informal complaint by the employee or settling an administrative challenge to an adverse personnel action.

Well, even if the principle behind the EO is a good one, the practical reality undermines the requirements of no-clean-record for one simple reason: HIRING OFFICIALS DO NOT ROUTINELY REVIEW AN APPLICANT’S e-OPF DURING THE HIRING PROCESS. Whether the SF-50 documenting a prior removal is in the record or not, it doesn’t matter. The application form itself requires the applicant to disclose any separations from previous employment under adverse conditions. That requires the applicant to disclose separations resulting from settlements with other government agencies as well as separations from private sector employers. Lying on an application for government employment is a criminal violation and can result in jail time for the applicant. The cleanliness, or lack thereof, of the e-OPF is an exceedingly minor matter.

The result of the EO is that a valuable bargaining tool available for agencies has been taken away, with very little resulting value for the government by the iron-clad ban on clean record settlements. Whoever conceived of Section 5 might be onto something worth pursuing, but the approach taken by the EO reveals a lack of practical understanding of the federal hiring process.

On October 19, OPM stepped into the fray by issuing an “Interpretative Guidance” memo to help agencies deal with the restrictions of Section 5. Unfortunately, for many of us front-line practitioners, while the memo giveth, it also taketh away. We discuss that issue in a separate FELTG article.

Isn’t this crazy? Here at FELTG, we’re just a tiny little training company, full of contractors just trying to make a living. Yet we have to help you wonderful civil service law practitioners understand what the White House is really trying to do. Geez, I hope we get this right. Wiley@FELTG.com

Administrative Juries: Love Them or Hate Them?

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By William Wiley, October 23, 2018

In a previous article, we laid out an alternative dispute resolution mechanism that employees could opt for if offered the option by management. Unlike the traditional ADR process of mediation, this form of ADR requires that the employee waive other rights of redress and resolves the matter permanently at its terminus. We called this procedure an Administrative Jury and promised you a discussion of its pros and cons in a later article. Well, this is that later article.

Instead of a pro/con approach, we’ll analyze the Administrative Jury option from a love/hate approach. These days if you watch cable TV, you will recognize that love/hate has become a very standard way of viewing life these days.

Lovers – There are some groups that are going to love Administrative Juries as an option to the standard redress systems:

  • Employees who want a prompt resolution to workplace disputes. Employees who believe that they have been mistreated will opt for juries to get a quick day in court. Sometimes employees believe that the whole management structure in an agency is a coven of witches and devils. By giving the employee a chance to be heard by a group of coworkers, the grieving employee is bypassing those evil managers and hopefully getting a more neutral, perhaps even employee-biased, decision.
  • Managers who want a prompt resolution to workplace disputes. A pending discrimination complaint against a supervisor can adversely affect the supervisor for years. The Sword of Damocles is a good analogy. It’s like a splinter in your foot until you finally get it out. No more coerced mediation or constructive apologies. No more depositions and responding to document demands. No more being cross-examined by someone trained to make you look like a racist idiot. You get in, you make your best case, and you rest easy and early knowing that you’re going to win more jury decisions than you’re going to lose.
  • Employees and managers who don’t want to spend a lot of money. Years ago, GAO estimated that the cost to the government of an MSPB appeal was about $100,000 IF the removal was upheld. Senior counsel in a big DC law firm can charge above $800 per hour to represent an individual in a complaint or appeal. For some higher ups, that’s not a lot of money, but it is for those lower in the pay scales, the ones that need the help the most.
  • Why coworkers? Because an Administrative Jury is the ultimate in “employee engagement.” Give employees the chance to help decide who gets to work at the agency and you have empowered them to have a significant impact on their daily lives. No longer are they just on the receiving end of whatever it is management wants. You are treating them as adults who have a joint responsibility with management to make the organization function as it’s supposed to function.

Haters – There are other groups who stand to take advantage of the current system and would not want to see anything replace it:

  • Private sector employment lawyers, the ones who make a good living representing employees in the traditional redress systems. They provide a service in which their income is based on how long it takes them to provide counsel to a client. They can still have an income in an Administrative Jury system, but it’s not going to provide enough income to buy a new Tesla every year.
  • Attorneys on both sides who believe that their side is always right, and if they just do enough discovery, examine enough witnesses, and file scintillating briefs written mostly in Latin, they will be victorious. These folks do not subscribe to the old maximum, “Don’t let the perfect defeat the good enough.” They demand that every rock be overturned and will take a case all the way to the Supreme Court to prove to the rest of the world that they are the smartest, more righteous litigant in the case. They cannot accept that a system that produces a good-enough answer quickly can be better for America than a system that produces the “right” answer every time.
  • Employees and managers who believe that they need to punish the other side by dragging it through traditional litigation. Tell me you don’t know employees who intentionally file baseless complaints to coerce management into something, and I will tell you that you haven’t had much experience in this business. Fortunately, these folks are the exception, but they still exist. And they would never opt for a quick resolution via the jury route when they can cause great suffering and pain through traditional redress procedures. They don’t want an answer, they want a fight.

So, there you have it. In three brief articles, a system that could improve the civil service greatly. Hopefully someday someone in a position of power will give this approach a trial. That someone could be you. Pick a component of your organization and set up this option. Try it for a year or so. Have a neutral third party evaluate the results. Then tell the rest of the world how it worked out. Did you know that some of the high-tech companies out here in Silicon Valley near where I work give an award every quarter to the internal organizations who try something outside the box, and fail? They see the value in trying something new even though there is a chance for failure.

If you’re happy with the EEO complaint system we have now, if you look forward to being attacked at an MSPB hearing, if you have nothing better to do in your job other than deal with workplace disputes, then forget these three articles. However, if you believe that there just might be a batter way to run the government, here’s your procedure and now’s your chance. Be brave. Grab the gold ring. And most of all, have fun doing something new. Wiley@FELTG.com

The Ford-Kavanaugh Tell-the-Truth Tool

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By William Wiley, October 9, 2018

The Ford-Kavanaugh Senate hearings had much of our country focused on the concept of evidence and proof. In last week’s FELTG News Flash, we wrote about the problem the Senate has because it is arguing about “proof” without having a definition of what level of proof is relevant. Is there proof that Kavanaugh, who was confirmed and sworn in over the weekend, tried to sexually assault Dr. Ford 35 years ago? How much evidence is necessary for one to conclude that the claim has been proven? Consideration of the nomination to be a Justice on the Supreme Court is effectively a job interview. Do we need any proof at all relative to serious claims of prior sexual misconduct?

We eliminated a couple of options relative to the degree of proof that makes sense in a case like this. Although there are good arguments to the contrary, and although there are those who call for “concrete” evidence and others who call for no evidence at all, we concluded that the best standard to use in cases like this is the standard used throughout most of government regarding personnel matters: preponderant evidence. A preponderance of the evidence is reached when a fact finder concludes that it is more likely than not that a claim is true; e.g., that the facts claimed “probably happened.” Those old scales of justice are just barely tipping in the direction of believing the allegations.

When explaining her vote to confirm last Friday, Senator Collins stated that the standard of proof she was using was whether it was “more likely than not” that Dr. Ford’s claim regarding the sexual assault was correct. Which leaves us with deciding who is more likely to be the more truthful about what happened at that teenage drinking party 35 years ago. Did a drunken Nominee Kavanaugh attempt a sexual assault as Dr. Ford now claims at the 100% certainty level? Or, as Judge Kavanaugh asserted forcibly and with absolute certainly in the hearing, is the correct answer that he did not do it?

In other words, which of the two possible scenarios adopted by Senator Collins and several other Senators is more likely to be correct?

1. Kavanaugh sexually assaulted Ford at that high school party and is lying about it now so that he can be appointed to the Supreme Court (or is forgetful).
2. Someone other than Kavanaugh sexually assaulted Ford that night and she mistaken as to who her attacker was.

Many “experts” and Senators argue that we cannot conclude that the attack happened because there is no evidence beyond Dr. Ford’s claim. Well, that’s not exactly accurate. There indeed is evidence beyond the claims of Dr. Ford. It might be fair to say that the evidence does not amount to proof if one is using a higher standard of proof than preponderance. However, if we are using the widely accepted standard of preponderant evidence, MSPB gave us a tool over 30 years ago to assess the evidence in a he-said/she-said situation such as this one. Based on the case in which the Board defined this truth-telling instrument, that tool is known as the Hillen Factors.

You see, in civil service law, it is somewhat common to have two witnesses testify to two diametrically opposed sets of facts. This is especially true in claims of sexual misconduct. Many such situations involve a he-said/she-said conflict in testimony, simply because most acts of sexual misconduct occur in private, involving only two witnesses. If the Board were to require corroborating evidence in each of those claims, many perpetrators would go unpunished for lack of “concrete” evidence that the misconduct occurred. Appreciating the unfairness of such a situation, and acknowledging that the “probably” proof standard was appreciably lower than the standard needed to throw somebody in jail for a crime, the Board laid out the Hillen Factors as a guide to its judges as to how to assess evidence, and as an instrument for parties to an appeal to use to prove their claims.

Now, you get to be a US Senator (or Fox/CNN talking head, if you see that as a better job). Consider each significant Hillen Factor below relevant to what you know about each witness. Answer the questions, fill in the blanks, and then you can decide who’s telling the truth:

Hillen Factor
Kavanaugh
Ford
Reputation for honesty
Has lied previously?
Has lied previously?
Bias or lack thereof
Reason to lie?
Reason to lie?
Inherent improbability
Statements reasonable?
Statements reasonable?
Demeanor
Calm and straightforward?
Calm and straightforward?

It is fair to say that there is not a lot of evidence to support either witness. However, using the preponderance of evidence standard, there does not need to be a lot of evidence for there to be proof. There just needs to be a little bit more one way or the other, enough to slightly tip the scales of justice.

You get to be the judge. Decide where the Hillen analysis takes you. You and I might reach a different conclusion, but we cannot say that there is no evidence. There are always the Hillen Factors to help us get there. Without them, victims of one-on-one attacks will never receive justice. Wiley@FELTG.com