Two Lumps of Coal from the Guys in the Black Robes

,

By William Wiley, December 19, 2016

Just last week, we wrote about a decision from the federal circuit that we said reflected a lack of understanding as to how a federal agency operates. In case you’ve already forgotten due to excessive pre-Christmas festivating, the Federal Circuit faulted an agency because it did not notify the employee in a proposal-to-remove notice that a senior manager had told the proposing and deciding officials that if the employee had done what was alleged, “we need to try and terminate her.” Federal Education Association v. DoD Schools, Fed. Cir. No. 2015-3173 (November 18, 2016). There was no indication that this communication actually impacted the decision to remove the employee. No finding that the communication was otherwise improper. Just a ruling that such pre-decisional communication has to be disclosed to the employee because it “was likely to result in undue pressure on the Deciding Official.”

As we pointed out in our newsletter, these sorts of communications occur all the time in federal agencies. And one could argue that just about any affirmative communication from a senior manager might be likely to result in pressure on lower level supervisors. In fact, pressuring lower level supervisors into action could be argued to be the first sentence in a senior manager’s position description. Some might even call that “leadership.” And “undue”? Every reader of this article is about to get a new political overlord, henceforth known for all eternity as a “Trumpette”© (copyright FELTG 2016). So, when the Trumpettes© take control and start issuing missives that bad employees should be removed if they don’t improve, do we need to staple those to all the proposal notices that follow? Holy, moly, what a lack of appreciation for how managers run the government.

Well, now we find a second lump of coal in our Christmas stocking, Miller v. DoJ, slip op 2015-3149 (Fed. Cir., December 2, 2016). In that case, DoJ had to defend itself against the appellant’s claim that the agency had reprised against him because of his whistleblowing.

As everyone knows who has attended our festive and fantastic MSPB Law Week (next offered March 13-17 in DC, then June 12-16 in the always delightful and inspiring San Francisco), an agency defends itself from a claim of whistleblower reprisal by arguing that the three Carr factors support a no-reprisal conclusion:

  1. The agency’s evidence to support the action claimed to be in reprisal for whistleblowing is strong,
  2. The motive for the agency management officials to reprise is weak, and
  3. The agency treated other employees who are not whistleblowers just as harshly as it did the whistleblower. Carr v. SSA, 185 F.3d 1318 (Fed. Cir. 1999).

In Miller, the alleged reprisal personnel action was a series of reassignments related to an OIG investigation. Regarding Factor 3 (similarly situated non-whistleblowers), the agency presented proof that there were no other employees similarly situated to the appellant at his facility who were not whistleblowers who were not reassigned; e.g. who were treated less harshly. The Board accepted this evidence and concluded that Carr Factor 3 carried no weight one way or the other. The fact that there were no non-whistleblowers under the control of the action official at the agency could not be an indicator of whether the action official considered the appellant’s whistleblowing in his reassignment decision-making. Makes sense to me.

Of course, the fact that it makes sense to me is just more proof I have no future as a federal judge. The court majority in Miller concluded that the agency’s evidence was deficient because the agency did not prove that non-whistleblowers elsewhere in the agency who were the subject of an OIG investigation also were reassigned. That’s right, the court reasoned that it is the “agency” that is required to prove similar treatment between whistleblowers and non-whistleblowers, even though it is a single, relatively low level manager who made the reassignment decision. Proof of no similarly-situated employees in the organization over which the action official has control is not enough.

With all due respect, this makes no sense. The agency here is the US Department of Justice, an organization of over 100,000 employees performing highly divergent functions. Here, a correctional officer is the appellant. The court is saying that the agency should have submitted proof of how it handles, perhaps, the reassignment of one of its tax lawyers who is the subject of an OIG investigation. Or, an administrative assistant over at the US Marshals Service, or maybe an environmental paralegal in the Environmental and Natural Resources Division. Why does it matter if some other supervisor did or did not reassign an employee associated to an OIG investigation? The action official in Miller is the warden of the local facility. That is who we should be assessing for whether he had an anti-whistleblower animus. A federal agency is not some monolithic Borg-like entity, controlled in thought by a single consciousness at the top who knows all and makes all the decisions. The warden in this case reassigned the appellant. Proof that a dozen other managers spread out among DEA, EOUSA, ATF and the War Division of DoJ reassigned OIG-targets who were NOT whistleblowers in no conceivable way goes to evidence as to what was in the brain of the local warden who did the whistleblower reassignment.

The Federal Circuit invented the Carr analysis. It now claims to be bound by it to consider agency-wide actions as low level as a reassignment when evaluating claims of whistleblower reprisal. It seems to expect that everyone in a federal agency knows everything that is happening within it, even things as minor as a reassignment. This approach is nonsensical and reflective of a lack of common sense when it comes to understanding how a federal agency is run. The law does not work without an appreciation for real-life application. Wiley@FELTG.com

Draining the Discipline Swamp

,

By William Wiley, December 5, 2016

Dear President-Elect Trump:

Hey, how’s it going? Getting settled into that commander-in-Chief-to-Be role? Having fun answering phone calls and sending out tweets 24/7? Ready to run the Executive Branch? Trust me; we here in the federal employment law community are just as excited as you must be by this prospect.

And here at little old FELTG, we stand ready to help you, in any way we can. We are All Civil Service / All the Time, and we just love to act all smart and give out advice, whether the advice is asked for, or not.

You might remember that last week, we dropped you a public note about how screwed up the current oversight functions are within our beloved civil service. There are at least seven avenues of review if an employee claims to have been mistreated by his employing agency (eight if you count our previous typo). Their jurisdictions may or may not overlap, depending on exactly the claim being made, their procedures are all different, and they each have their own turf to defend. We suggested oh-so-delicately that you add fixing this quagmire to your to-do list once you take the civil service oath.

Interesting Fact: The very first law passed by Congress, Law Number One as they say over at the National Achieves, was that those of us lucky enough to be chosen to work for the United States government must swear allegiance to it. That oath you’ll be taking on January 20 is the very same oath that every civil servant has ever taken. Welcome to the club.

In response to our article last week about the oversight mess you’re inheriting, we received figuratively thousands of demands and pleas that we provide the answer to this mess. It’s one thing to point out a problem; it’s a higher calling to propose a solution. Never one to duck a higher calling, here we go with the FELTG Fix for the Problem of firing a bad federal employee.

Stay with us here; this gets pretty darned deep.

The Root of the Problem:  A foundational component of our civil service is that once an employee completes her probationary period and reaches a career status, she is vested in her position with the government. The courts, including the U.S. Supreme Court, have historically acknowledged that a career federal employee has a “property interest” in continued employment.

In our great country, an individual retains his property until it is either taken from him or he disposes of it himself (as a gift or as a sale). A taking occurs when someone breaks into your home and removes that big flat screen TV from your Man Cave wall. The more civil approach to a taking is when one person sues another person, demanding property ($) to right some wrong. Separately, the state can take away a citizen’s property by demanding the payment of a fine such as a parking ticket. Unlike an illegal taking (like a burglary), legal takings are adversarial and fought out in court, using controlling law, evidence, and argument before a neutral fact finder. This is known as the “adversarial” process; a process whereby property is taken away from someone in a fair and just manner.

When a federal agency fires one of its career employees, it has taken away that employee’s property. Therefore, to do it legally, the agency is required to subject itself to an “adversarial” process, seven of which we noted in last week’s article. In those processes, the agency has the burden of proving that the employee is at fault, with the employee having the commensurate right to argue that he is faultless. In a fault-based system like this, we need investigators, arbitrators, judges, boards, commissions, authorities, lots of time and money, and lots and lots of lawyers.

Not only is the adversarial world expensive and time consuming, it doesn’t always produce the right result. The side that happens to have the most money or best advocate may win an appeal, even though the other side should have won. Sometimes the government will pay money to “settle” a case, even though it is in the right, but doesn’t want to dedicate the adversarial resources to prove it. After 40 years of the current civil service law, agency removals are set aside on appeal at a rate of one-in four or one-in-five. That’s a dismal success rate when you’re talking about fairness to an employee and government money that is being wasted.

The Fix:  About 150 years ago, Germany ran into a similar problem in the workplace. Individuals were getting injured at work without any assurance that their injuries would be compensated. If the injured individual felt that the employer was at fault, he had to hire a lawyer, bring suit, and then he may or may not have been successful in receiving damages. Any damages awarded, of course, had to be shared with the successful attorney who represented the injured worker rather than go to the worker who no doubt needed the money more. Individuals who could not afford a lawyer became a drain on society if they could no longer work, often requiring years of charity to survive.

In the late 1800s, Count Otto von Bismarck came up with an alternative. He pressed through a law that characterized on-the-job injuries as “no fault” events, thereby removing them from the adversarial world of lawsuits. Today, in our country we call programs like his “workers’ compensation programs.” You get injured on the job, you get compensated without having to get all adversarial and prove fault.

Along those same lines of a “no-fault” process, our country (as do most all western countries) maintains the right of “eminent domain.” If the fed needs to build a road through your farm, it gets to take it if it compensates you for the property. You haven’t done anything wrong; there’s no fault when your private property is expropriated by the government for the public good. It’s just our legal way of acknowledging that Mr. Spock was onto something when he said, “The needs of the many outweigh the needs of the few.” The Wrath of Khan (1982). You have been relieved of your property in a non-adversarial manner: a sale, albeit a forced sale.

And, thus, our recommended fix. Do away with the adversarial nature of a firing a civil servant and convert it to an eminent-domain-like taking, based on the following precepts:

  • Every year of acceptable service that an employee completes entitles him to a year of ownership of his position.
  • Individuals who work for the government 20 years have 20 years of entitlement. Therefore, even if she messes up in year 21 and deserves to be fired, she has earned value in the 20 years she did good work.
  • An agency should be able to “buy back” a job from an employee. Just like the farmer required to give up (for pay) the south 40 for construction of a freeway, develop a formula for valuing a job held by a career employee – based on salary and length of service – and allow the government to remove the employee by paying the employee whatever the value is for his job. No need to prove fault. No reason to fight it out in an adversarial nature. The job is worth this much money. Here’s a check. The agency can now use the position for the public good by hiring a replacement.

And now I hear the nay-sayers:

“But Bill, won’t that cost a lot of money?” No, not compared to keeping a bad employee on the payroll through retirement or devoting resources to defend a removal in a risky adversarial forum.

“But don’t we need to ‘punish’ somebody?” No, we learned from Count von Bismarck’s approach that punishment is not necessary to achieve a desirable end, even if fault is somehow involved.

“But won’t this radically change what the civil service is all about?” No, I won’t give you “radical.” However, I’m OK with characterizing this no-fault approach as being a “fundamental” change.

More importantly, though, I think that it is a pragmatic change, a change designed to protect an employee’s rights to an encumbered position by setting a price tag on those rights while simultaneously allowing an agency the flexibility to simply and quickly manage the darned federal workforce. If we are to listen to the voices of many of our elected officials (and those who tried to become elected, but failed), something needs to be done about this quagmire, this swamp.  The civil service is seen by some as a stagnant pool of inefficient workers who cannot be fired.  While we strongly disagree with that view here at FELTG, we have to accept that this is the world in which we live. We need to take steps to deal with it instead of just saying that they are all wrong, we are all right, and things should stay the same as they always have been.

The current oversight of the civil service removal process is adversarial, expensive, and time consuming. Converting to a no-fault buy-back process protects the employee’s rights to the position he has earned while allowing for the prompt secure removal of non-productive individuals. Yes, this approach changes in some ways a fundamental structure of our civil service system.

But maybe a fundamental structural change is exactly what is needed. Wiley@FELTG.com

The Oversight System Quagmire

,

By William Wiley, November 29, 2016

Dear President-Elect Trump:

We have so much advice for you here at FELTG. You see, we’ve been messing around with the civil service for nearly 40 years. We’ve figured out a few things because we’ve seen a few things. Here’s another little mess for you to think about cleaning up, after you get that wall going and all those “bad” people deported.

At the heart of a civil service system are built-in protections to prevent managerial overlords from unfairly harming hard-working career federal employees. Put simply, if a civil servant believes that he has been treated unfairly, he should be able to complain to someone with oversight authority who will consider the facts and decide whether the employee has been treated unfairly.

The most serious unfair treatment involves a manager taking away the salary of an employee. Here are the options that an employee has today if she believes that a manager has unfairly taken away part of her salary:

  1. If she believes that the manager was motivated to take away her salary because of her RACE/SEX/AGE/etc., she can file with the US EQUAL EMPLOYMENT OPPORTUNITY COMMISSION.
  2. If she believes that the manager was motivated to take away her salary because of her UNION ACTIVITY, she can file with the FEDERAL LABOR RELATIONS AUTHORITY.
  3. If she believes that the manager was motivated to take away her salary because of her WHISTLEBLOWING ACTIVITY, she can file with the US OFFICE OF SPECIAL COUNSEL.
  4. If she believes that the manager was motivated to take away her salary because of her RIGHTS UNDER A UNION CONTRACT, she can file with an ARBITRATOR.
  5. If she believes that the manager was motivated to take away her salary because of her UNION ACTIVITY, she can file with the FEDERAL LABOR RELATIONS AUTHORITY.
  6. If she believes that the manager was motivated to take away her salary because of her STATUS AS A VETERAN, she can file with the US DEPARTMENT OF LABOR.
  7. If she believes that the manager was motivated to take away her salary in violation of her DUE PROCESS RIGHTS, she can file with the US MERIT SYSTEMS PROTECTION BAORD.
  8. If she believes that the manager has erroneously set her salary low in violation of her RIGHT TO PROPER COMPENSATION, she can file with the US OFFICE OF PERSONNEL MANAGEMENT

Of course, there are some minor tweaks to these employee rights. For example, the union must approve the employee’s invocation of arbitration to resolve a grievance, and there are dollar limits in place for other appeal rights. Still, the bottom line is that there are eight separate independent civil service oversight agencies, each with its own staff, official seal, and unique procedures, that have the responsibility of resolving issues of fairness that arise between a civil servant and his employing agency.

You want more craziness? Most of these oversight agencies are limited as to what they resolve when an employee complains about unfair treatment. They cannot resolve any general mistreatment issues, only issues within their jurisdiction. For example, if an employee complains to EEOC about mistreatment, even if EEOC concludes that the union contract has been violated, it is without the authority to provide the employee any relief. If an employee complains to FLRA about mistreatment, even if FLRA concludes that the employee has been mistreated because of whistleblowing, it is without the authority to provide the employee any relief.

I’m not finished with the craziness. The general view when there are several possible oversight processes is that the employee gets one bite at the apple. Wherever you file first determines which agency and what procedures will control the employee’s complaint. However, if you think about it, an especially creative employee seeking redress of a single personnel action conceivably could complain about parts of the action to all eight oversight entities simultaneously.  I once explained that to a Congressman who responded, “If they’re that smart, they deserve to win their appeal.”

I can’t really argue with the logic of that layperson’s conclusion.

Look, Donald (may I call you Donald?).  The word is that you want to do away with over-regulation, that you want to “drain the swamp” of unnecessary government. We know that you have pipe lines, health care, and trade pacts on your list of to-dos. Well, here’s another one. Now that you see the problem, the solution should be clear. Replace this quagmire with a system that:

  • Makes it drop-dead easy for managers to hold civil servants accountable, and
  • Makes it drop-dead easy for civil servants’ rights to be upheld.

If our little training company can figure this stuff out, so can your administration. Wiley@FELTG.com

Another Bold FELTG Recommendation

,

By William Wiley

Dear President-to-Be:

I’ve been reviewing all the Board’s decisions for FY-2016 in preparation for our upcoming Updates webinar on Thursday, and I notice that the trend from past years continues. When looking at cases that agencies have lost, I lump the reasons for the losses into one of two groups:

  • Proof Losses – In these cases, the Board set aside a removal because it disagreed with the Deciding Official’s evaluation of the Douglas Factors or the agency’s presentation of a preponderance of the evidence to support its removal charges. I don’t see a lot of “fault” in these losses because an agency simply cannot predict what evidence the Board will find to be compelling. You do your best, but you just never know.
  • Practitioner Losses – In these cases, the Board set aside a removal because the agency representatives – lawyer or Human Resources specialists or both – failed to grasp a fundamental rule of MSPB practice. Examples of decisions in this group would be due process violations, failing to follow procedures, and improper charge framing.

As in previous years in which we have done this analysis, Practitioner Losses outpaced Proof Losses two-to-one. For every three cases agencies lost in FY 2016, one was because of a lack of enough proof, and two were because agency lawyers/HR specialists did not know Board law. And I mean BASIC Board law.

This situation is bad for America. In two-thirds of the FY 2016 cases that were lost, an employee was denied some right guaranteed by MSPB precedence. And the price for these rights-denials is often back pay with interest, attorney fees, and reinstatement. There is no joy in this situation for anyone: union, management, or private citizen.

From the pages of this newsletter, for nearly a decade, we have beseeched OPM to do something about this government failing. We have argued for OPM-approved training, testing, and certification of agency practitioners. We got nothing. We have pleaded with agency top leadership to mandate training for agency representatives. Not a peep. We’ve lobbied Congress to pass laws that would require that government employees who do this work know government employment law. Not even a thank-you for the sample textbooks we send them.

Well, maybe we’ve been barking up the wrong organizational tree.

I never claim to know much law beyond the four corners of federal employment law. But it is my understanding that to practice law in certain jurisdictions, an attorney has to be admitted to practice. For example, my fancy admission to the practice of law in California and before the US Supreme Court does me little good if I try to appear in some local parish courthouse in Louisiana. Did you see My Cousin Vinny? Well, that would be me, except I’d never get into the courtroom (and Marisa Tomei would never give me the time of day). Courts have their standards and they don’t want some doofus lawyer from out of town making a fool of himself before one of their judges.

So what if MSPB were to establish a standard of practice for lawyers and non-lawyers alike who represent agencies or clients in appeals to the Board? What if it required testing for anyone who wants to either appear on behalf of an agency or be entitled to attorney fees in a successful appeal of a removal? Maybe it could certify training groups to present programs that would be an alternative to testing, sort of the way that bar associations screen and approve organizations to provide continuing legal education.

There would need to be some exceptions, of course; perhaps some grandfathering in of practitioners who have represented in a certain minimum number of Board appeals. And of course, an employee can always represent herself. But a well-trained, recognized group of employment law practitioners, on both sides of the hearing room, would certainly make for a better government. Hey, Board! You’re in charge of protecting the merit systems. How about requiring that those who implement the merit systems know what in the devil they are doing.

Because these latest loss statistics say that some of them don’t. Wiley@FELTG.com

A Love/Hate MSPB Decision

,

By William Wiley

I think I’ve read maybe 10,000 MSPB initial decisions over the years. Most were good to very good, a real credit to the judges at the Board and their leadership. However, every now and then – perhaps 1 out of a 1000 – stands out as particularly well done. And recently, I ran across one of those.

The appellant’s situation is a sad one. After receiving a proposed 14-day suspension for possession of alcohol on agency premises and unauthorized use of government property, the employee entered into a Last Chance agreement (LCA) in which the agency agreed to hold the implementation of the suspension in abeyance to give the employee a chance to undergo rehabilitation related to his alcohol use. A condition of the agreement was that the employee would refrain from future misconduct for one year.

Very smart agency move – most likely implemented by one of our FELTG-certified MSPB Law Week practitioners.

Unfortunately, the employee just could not get his situation under control. So when the agency later found him under the influence of alcohol and living in an agency building (with his dog! Isn’t that some sort of mitigating factor under Douglas?), the agency notified the employee that he had violated the abeyance agreement, and imposed a 14-day suspension. A month later, it proposed the employee’s removal based on charges of alcohol impairment and misuse of government facilities. In selecting the removal penalty, the deciding official relied on the originally-abated 14-day suspension as a prior act of discipline, thereby applying the principle of “progressive discipline,” and fired the employee. Duffy v. DVA, SF-0752-15-0552-I-1 (June 15, 2016).

I’ve been waiting on resolution of this narrow point for a number of years. Suspensions that are held in abeyance are rare as compared to removals held in abeyance, so the issue does not come up often. On one hand, as the judge did here, I can see counting the suspension as a prior act of discipline because the employee engaged in previous misconduct and served his suspension prior to the proposal to removal. On the other hand, as a psychologist, I can argue that the suspension should not have been considered as a prior act of discipline because the employee has not had the “benefit” of the negative reinforcement that comes from serving a suspension. We punish (cause a little pain by suspending without pay) to motivate an employee to do better, to obey our rules. In this case, the employee was punished after he committed the misconduct that resulted in his removal. Therefore, he did not have the benefit of the pain of a suspension to motivate improved conduct. And arguably therefore, the suspension cannot be counted as a prior act of discipline for the purpose of an enhanced penalty based on progressive discipline.

Fortunately for DVA, this judge had no problem with counting the suspension as a prior for purposes of a Douglas analysis. And unless that finding is set aside on appeal, it will become a rule we can all apply. If so, I can see a future in which we never suspend anyone. If we can get the same bang for our buck by holding the suspension in abeyance and implementing it only when there is future misconduct warranting discipline, why in the world would we go through the hassle of a grievance, an arbitration in a union environment, an EEO complaint, or a complaint to the Office of Special Counsel? A smart agency (as here) would propose a suspension, then cut a deal with an employee to accept an abeyance agreement instead. Soooo much easier.

I love this decision for taking on this issue and stating an answer. At least now we have something to hang our litigation hats on should we choose to use an abeyance’d-suspension as a prior act of misconduct in a penalty analysis. But there’s so much more.

There were a number of other issues in this case:

  • Did the employee waive his rights in the LCA to challenge any eventual removal for misconduct?
  • Does a charge of “alcohol impairment” require an agency to prove that the employee was legally intoxicated?
  • What weight should be given to unsworn statements by law enforcement officers as to the indicia of the employee’s being under the influence; e.g. slurred speech, swaying, disorientation?
  • What is the best evidence that should be presented when using the results of a breathalyzer test to establish intoxication?
  • How valuable is a penalty-of-perjury-declaration when the deciding official swears that just one of the two charges proposed would warrant removal?
  • Why is it prudent to have the Proposing Official complete a Douglas Factor analysis as compared to a Deciding Official?

The reason I love this decision is that the judge to his great credit took on each issue (raised by highly competent appellant counsel, by the way), cited extensively to the record and the controlling precedence, and then reached a firm, defensible conclusion. The initial decision is 25 pages long with 17 footnotes. I encourage anyone who has any of these issues to review the well-written and well-supported judge’s decision. You will find rationale and case law to support exactly where the Board is today on each of these matters: 116 LRP 35609 if you have CyberFEDS©. Alternatively, you can come to the next FELTG seminar MSPB Law Week seminar (March 13-17, 2017 in Washington, DC) and we will be happy to explain this stuff to you.

Yet I also hate this decision. It took this very smart judge 25 pages and 17 footnotes to resolve this appeal. Yes, he has created a terrific learning tool for us practitioners. However, the expense of the creation of this learning tool is significant. In my practice, it takes me about an hour to write each page of a legal document like a decision. Given the workload that the current leadership at MSPB (soon to be gone in just over four months) has placed on itself and thereby its judges, one has to wonder whether the cost of this decision is worth the value it has provided to the appellant and to the agency. In other words, could a shorter decision have been written to provide the same value to the parties as this longer decision did, without taking so much legal time and effort to get there?

Of course, here at FELTG, we like to ask ourselves questions, and then answer them so that we look smart. We encourage you to read the judge’s decision in its entire 25-page glory, and then consider the following as an alternative way of resolving an appeal of a removal in a case that has many significant issues and is well-litigated:

Heading: [As usual]

Appellant Darrell Duffy has appealed removal from his position as a WG-4749-10 Maintenance Mechanic for misconduct at the Department of Veterans Affairs.

Charges (abbreviated):

  1. Alcohol impairment – On December 17, 2014, a breathalyzer revealed the appellant’s blood alcohol level to be 0.065.
  2. Misuse of Government Property – On December 17, 2014, the appellant was found to be storing approximately 40 boxes of personal property within agency facilities.

Issues:

  • Claim – The appellant waived rights to appeal this removal because of a “Last Chance Agreement” (LCA) that held a prior 14-day suspension in abeyance.

Holding – Although the LCA specifically waives the appellant’s rights to contest the 14-day suspension, it did not specifically address waiver of any appeal rights relative to a subsequent removal. Moreover, the agency treated the subsequent removal as a classic adverse action removal by basing the removal on new charges and by giving the appellant full Board appeal rights. If the agency believed that the appellant had waived his rights to a subsequent removal when he entered into the LCA, it would not have framed new charges and it would not have given MSPB appeal rights. Therefore, the appellant may challenge the validity of the removal on the merits as there is NO RIGHTS WAIVER.

  • Claim – A charge of “Alcohol Impaired” requires the agency to prove intoxication at a level defined in law as legally intoxicated.

Holding – A charge of impairment does not require proof of intoxication. The unsworn statements of the police officers (though better if sworn) that the employee’s speech was slurred, that he was disoriented, had bloodshot watery eyes, appeared nervous and standoffish, and smelled of alcohol coupled with the breathalyzer reading and the employee’s admission that he had been drinking the night before, established that it is more likely than not that he was alcohol-impaired while at work. Although I have credited the unsworn statements of the police officers relative to the breathalyzer results, better evidence would have been a contemporaneous photograph of the reading on the breathalyzer. Charge 1 is SUSTAINED.

  • Claim – Appellant’s decision to move personal items into the agency’s facility was caused by a lapse in judgment that resulted from his alcoholism.

Holding – Whether intentional or inadvertent due to his alcoholism, the photographic and testimonial evidence fully supports that the appellant stored personal items, including a dog, on agency premises without authorization. The appellant stated in deposition that his poor judgment was not related to his alcoholism. Charge 2 is SUSTAINED.

  • Claim– The agency committed three harmful errors: 1) double-punishment, 2) failure to conduct a proper investigation, and 3) the Proposing Official conducted a premature Douglas Factor analysis.

Holding – As for 1) the double-punishment claim, the 14-day suspension was for alcohol at work in November. Although the December alcohol event established a breach of the LCA and also formed the basis for the eventual removal, it was not the basis for the prior discipline that resulted from the November alcohol event. Separately, the Deciding Official testified that he would have removed the employee even if there had not been a prior disciplinary act based on alcohol. Therefore, no double punishment. As for the 2) proper investigation issue, although the appellant points to sections of the relevant collective bargaining agreement that arguably call for a management investigation separate from a police investigation, even if error, the appellant has not shown how he was harmed by the error. As for the 3) claim that it is agency policy for the Deciding Official to perform a Douglas analysis, not the Proposing Official, I am aware of no law, regulation, or policy that imposes such a limit. In fact, given the holding in Ward v. USPS, 634 F.3d 1274 (Fed. Cir. 2011), such an approach would appear to be prudent and act to ameliorate potential injustice. Therefore, I find the agency DID NOT COMMIT ANY HARMFUL ERRORS.

  • Claim – The agency failed to accommodate the appellant’s disability of alcoholism and otherwise treated him disparately and harassed him because of his alcoholism.

Holding – The appellant presented neither direct nor circumstantial evidence that he was treated more harshly as compared to non-alcoholics who engaged in similar misconduct. In addition, even if alcoholism caused the employee’s misconduct, he is not immunized from discipline. The agency is free to hold him to the same conduct standards as a non-disabled employee. As for a failure to accommodate the appellant by refraining from disciplining him and allowing him to seek treatment for his alcoholism, an alcoholic is not entitled to such a “firm choice” accommodation. As for any claim of disparate impact, the appellant has not presented any statistical evidence to support such a claim. As for the claim of harassment based on his status as an alcoholic, the appellant has not presented any evidence that any treatment by the agency was motivated by his status as an alcoholic. Therefore, I find NO DISABILITY DISCRIMINATION.

  • Claim – The agency has failed to prove a nexus between the appellant’s misconduct and government efficiency because it has not proven that the appellant could not do his job satisfactorily even though he was under the influence of alcohol at work and stored personal possessions in the agency’s facility.

Holding – Proof of nexus is not restricted to demonstrating actual impediment to full job performance. Charges such as these implicate a palpable effect on management’s trust and confidence in an employee’s job performance. Therefore, I conclude that the agency HAS PROVEN A NEXUS between the charged misconduct and the efficiency of the service.

  • Claim – The penalty of removal is unreasonable.

Holding – The Deciding Official’s analysis of the Douglas Factors is complete and worthy of deference. He relied heavily on the original Douglas Factor analysis completed by the Proposing Official and found it holistic and compelling. Relevant aggravating factors included safety concerns raised by the appellant’s misconduct, the repeated nature of the misconduct within only a year, the public nature of his work, prior notice of his misconduct, the fact that this was a second disciplined offense, a lack of rehabilitation potential, and a lack of alternative sanctions. Therefore, I find that ANY MITIGATING FACTORS ARE OUTWEIGHED BY THESE AGGRAVATING FACTORS.

Decision: I AFFIRM the removal action.

[Standard petition for review rights.]

As we teach in the wonderful FELTG Legal Writing seminar, the author of a legal document should always keep in mind the purpose of the document. Therefore, we should ask, “What is the purpose of a judge’s decision?” Here at FELTG, we would argue that in a removal appeal the purposes of an Initial Decision are, in priority order:

  1. To resolve the question of whether the agency legally removed the appellant.
  2. To inform the parties as to what the judge concluded relative to the issues on appeal.
  3. To justify the judge’s decision to those who might review it on further review: Board members and federal judges.

While this decision is terrific for its well-reasoned and authoritatively-supported conclusions, it feels as if it is trying to address a purpose other than these three. Whether there are additional purposes, and whether they are worth the cost involved in drafting a 25-page decision, are questions that we hope the new leadership at the Board will address. Another little note for our new President. Wiley@FELTG.com

Learning from Our Mistakes

,

By William Wiley

If you’ve never made a mistake in this business of federal employment law, you either just started work last week, or you are not being aggressive enough. We all make mistakes. The trick is to learn from them. Sadly, too many agencies make mistakes that have been made for over a quarter of a century without seeming to have learned that they were mistakes to be avoided. Let’s deconstruct a recent adverse MSPB decision and hope that we FELTGers can learn from it.

Rosario-Fabregas v. Army, NY-0752-13-0142-I-2 (2016)(NP)

Action on appeal: Removal, GS-12 Biologist

Judge’s decision: Mitigate to a 30-day suspension

Board’s decision: Affirm the judge’s mitigation

Charge 1. Conduct Unbecoming: The employee edited letters on behalf of outside organizations with interests contrary to those of the federal government (five specifications).

Board’s Decision: Although the agency proved that the appellant edited letters for outside organizations, for four of the five specifications it did not prove that those organizations maintained interests contrary to those of any federal agency; e.g., the deciding official did not identify any interests he believed were contrary to those of the federal government. Therefore, one specification (and thereby the charge) affirmed.

Charge 2.  Insubordination:  The agency determined that a private organization did not need a permit for some act within the agency’s jurisdiction. The appellant voiced his conclusion that indeed a permit was required. The second level supervisor reconsidered the no-permit determination and concluded that it was correct. The appellant maintained his disagreement with that conclusion. When directed to issue the no-permit finding, the appellant “still maintained his original position” and was “openly antagonistic and disregarded the decision-making authority of his chain of command.”

Board’s Decision:  A charge of insubordination requires the agency to prove that the employee willfully disobeyed an order. The appellant testified that he complied with the order to issue the no-permit-required letter to the private organization. The deciding official had no personal knowledge as to whether the letter was issued. The proposal letter suggested that it was not issued, but the proposing official did not testify. Therefore, the charge fails. Being antagonistic is not being insubordinate.

Charge 3:  Inappropriate use of official time (five specifications).

Board’s Decision:  The editing of the letters at issue were not a responsibility specified in the employee’s position description. Therefore, all five specifications were sustained.

Charge 4:  Inappropriate use of government property (five specifications)

Board’s Decision:  The editing of the letters at issue on a government computer were not a responsibility specified in the employee’s position description. Therefore, all five specifications were sustained.

Summary:

  • The removal was based on four charges, three which had five specifications (4C + 15S).
  • The Board affirmed five specifications to support each of two charges, one specification in the other multi-specification charge, and set aside the Insubordination charge that had no specifications (3C + 11S).

Penalty factors warranting mitigation:

  • Not all specifications were affirmed.
  • The most serious charge, insubordination, was not affirmed.
  • The employee had not been informed of any specific rule that prohibited the editing of letters like the ones at issue here.
  • Letter editing was commonplace within the agency.
  • Although adverse notoriety was claimed by the deciding official to be possible, the actual notoriety relative to the letter editing was positive.
  • Although a lack of rehabilitation potential was claimed by the deciding official, the appellant was on record as saying, “I give my word of honor as a man that I would not correct any other letter for anybody else and that I would not argue about regulatory processes with my fellow staff. I would avoid any type of conflict, no matter its complexity.”

Learning points we have been making in our FELTG training for 15 years that, had the agency applied them, would have caused the removal to be upheld;

  • The fewer the charges and specifications, the better. We teach SHORT and SPECIFIC when it comes to discipline. That’s because, as happened here, the more the agency charges, the more the agency is required to prove. If the agency starts losing charges or specifications on appeal, the more likely it is that MSPB will set aside a removal.
  • Every element of a labeled end charge MUST be proven by a preponderance of the evidence. When the agency charged “Insubordination,” it obligated itself to prove that the order was not obeyed. Although it proved that it was mad at the employee for being cantankerous, it neglected to enter into evidence that the employee did not obey an order.
  • There are five elements to every removal action. The first one is that the agency must prove the existence of a rule, and the second one is that it must prove the employee was informed of the rule. Rules that are not enforced cease to be rules as an employee is reasonable to conclude that the agency did not intend to enforce its rule. Here, the agency failed to enter evidence to show that the employee had been told of a rule not to edit letters, and it was commonplace for letters to be edited.
  • Statements of fact in a Douglas factor analysis (the penalty defense explanation) MUST be proven by a preponderance of the evidence. When an agency claims potential bad publicity and a lack of rehabilitation in the face of good publicity and a positive indicator of rehabilitation, it is going to lose those claims for a lack of evidence.

Fun Facts:

  1. The Appellant won his appeal on his own, without a lawyer or other assistant.
  2. The Appellant won without requesting a second hearing, precluding the agency from introducing testimonial evidence.
  3. This decision was effectively a re-litigation of a prior appeal by this employee. The prior appeal was of a previous removal that was based essentially on the same charges that were the basis in this appeal. The really fun fact is that the judge in the first appeal upheld the removal.

Come to our classes. Learn the law. Do not assume that because you are smart and right, your removal will be upheld on appeal. Wiley@FELTG.com

 

 

Legalized Lying

,

By William Wiley

Consider this scenario:

  • Jane writes a letter to the director of human resources at her agency (or files an Inspector General complaint, or blows the whistle with the Office of Special Counsel, or writes to her Congressman). In that letter, she accuses her supervisor of forcing her to have sex with him or be fired during probation. Above her signature she appends the old penalty-of-perjury statement and swears on all that is holy that she is telling the truth.
  • John writes a letter to the HR director saying he saw the incident occur. Same truthfulness attestation.
  • The supervisor denies the allegation. However, because it’s two witness to one, the agency believes Jane and John. It fires the supervisor.
  • The supervisor’s wife becomes aware of the charge and leaves him, taking both kids and the dog with her (not the dog!).
  • Both Jane and John testify under oath at the supervisor’s MSPB hearing that their original statements are true.
  • Subsequently, it’s determined that both Jane and John had acted in bad faith and lied, that they made up their story to get the supervisor in trouble because they did not like him.
  • The agency restores the supervisor to his old job, pays his back pay and attorney fees. The wife moves back in, but the couple needs months of marriage counseling to heal things. But the dog – the poor dog – just cannot put all of this behind him, and barks incessantly every time the supervisor comes home.

Question: Can the agency now fire Jane and John for all the harm they caused?

Answer:  Yes. Making false statements, lying under oath; that’s some serious stuff. Probably a felony; e.g. 18 USC 242, 1621, or 1622. Removal is no doubt a defensible penalty.

OK, similar scenario, except this time, instead of writing a letter to HR, Jane says the same thing in the filing of a sexual harassment discrimination complaint. John’s statement is given to the EEO investigator. Both testify before an EEOC judge.

Question: Can the agency now fire Jane and John for all the harm they caused?

Answer:  No, if the agency is located in Richmond or New Orleans. Yes, if the agency is located in Chicago. Probably not if the agency is located in DC. See Egel v. DHS, Slip op 15-434 (US District Court, District of Columbia) (June 24, 2016).

You see, there’s something at play in this second scenario called the Pettway Rule (Pettway v. Am. Cast Iron Pipe Co., 411 F.2d 998, 1007 (5th Cir. 1969)). That rule is based on the analysis that since Title VII of the Civil Rights Act prohibits an agency from taking an adverse employment action because an employee has made a charge or testified in an EEO proceeding (the “opposition” and “participation” clauses), Jane and John cannot be fired because their false statements were made in that context. The Fifth and Fourth Circuit Courts of Appeal have adopted this rule (New Orleans and Richmond), but the Seventh Circuit has squarely rejected it (Chicago).  A single district court judge believes that the DC Circuit is in favor of it (Egel, above) and the rest of us court-watchers are waiting for an answer. EEOC appears to adopt it, but of course it’s the courts we care about if push comes to shove.

Those courts that have adopted the rule reason that to do otherwise would have a chilling effect on the rights of employees to file discrimination complaints. They conclude that statements made in EEO proceedings cannot be the basis for discipline even if those statements are false, malicious, or defamatory. The Seventh Circuit, on the other hand, concludes that only “reasonable” EEO complaint statements made “in good faith” are protected from discipline. Judge Posner from that circuit stated that he “can’t actually believe that forging documents and coercing witnesses to give false testimony are protected conduct.” See Hatmaker v. Mem’l Med. Ctr., 619 F.3d 741 (7th Cir. 2010).

Wow. Talk about a clash of societal values. On one hand, we don’t want discriminated-against employees to be afraid to file EEO complaints. On the other hand, we don’t tolerate lying very much. Here at FELTG, if we were splitting this baby, we’d come down on the side of saying that conclusory statements in EEO complaints are protected (e.g., “He sexually harassed me.”), but false statements of fact are not (e.g., “He forced me to have sex with him.”). Of course, we don’t adjudge anything here and you know what you’re paying for our opinions.

So develop your own opinion on this issue, then write to your member of Congress. Or get elected yourself. Or appointed to the bench. These cases don’t come up very often, but the answer is of fundamental importance to who we are as a society of laws. Do we want federal employees to be able to attack their supervisors by lying about them in EEO complaints? You be the judge. Wiley@FELTG.com

Time for FELTG to Start Advising our New President

,

By William Wiley

It’s that time again. We’re about to get a new face in the White House and a fresh breed of political overlords in each agency. Even the folks on Capitol Hill appear to be ready for a shake up. Hopefully, the new folks will take a few minutes to listen to us old guys before they start making seismic changes to our civil service.

As we here at FELTG claim rights to the heritage of some of the oldest folks in this business, we also claim the right – on your behalf – to tell the new leadership what’s working and what’s not working in this game of running the government. So expect to see several upcoming articles, intended for our new President, based on decades of (good and bad) experience, designed to make the government more effective and efficient while simultaneously recognizing long-standing employee rights and responsibilities.

To kick off our series, let’s start with one of our favorite topics: accountability. If you’ve participated in our supervisory program UnCivil Servant, you know that the subtitle for our textbook is Holding Government Employees Accountable for Performance and Conduct. We are all about accountability here at FELTG, from the bottom to the top.

But today, our focus is not on employee accountability, it’s on agency accountability. We’re looking at a question of accountability and responsibility that bedevils us all and drags down our civil service and our government:

What agency is responsible for the abysmal success rate government managers have when they fire employees?

Yes, abysmal. As we’ve written about in this newsletter before, MSPB should be upholding 100% of removals that managers implement. That’s because MSPB sets aside removals only when it finds that the agency made a mistake, and agencies have no business making mistakes (and thereby violating an employee’s rights) in any cases at all, save for the occasional unexpected change in law that occurs subsequent to the removal.

So exactly what is this less-than-100% rate that deserves the adjective “abysmal?” Well, according to the latest statistics and public pronouncements by MSPB’s current leadership, the Board finds fault and sets aside adverse action removals in 25% of appeals. That’s right. After spending the past 40 years learning the foundational civil service removal law, agencies still screw up one out of four cases.

That’s just terrible. Think of all the taxpayer dollars wasted on back pay and attorney fees. Add to that the agency resources that are wasted when an appealed action is set aside. Think of all the hundreds of lives disrupted each year by an unjust removal. If one out of four appealed removals is unwarranted, extrapolate that failure rate to all those employees who were fired, and who didn’t have the money, stamina, or wherewithal to make it through the appellate process so that MSPB could reverse their firing. And think of all the employees who should have been fired who were not because management looked at a success rates of only 75% and decided that it wasn’t worth the risk to fire them.

Now that I think about it, “abysmal” might not be strong enough.

If you ran a company, what would you do if you realized you had a 25% failure rate? 25% of your cars fell apart? 25% of your airplanes didn’t land? 25% of your pizzas made people sick? Would you sit back and say to yourself, “Well, at least 75% of my clients didn’t die.” No, you’d put somebody in charge of fixing the situation and then hold them accountable for a fix.

So who is responsible for fixing the government’s horrible success rate before MSPB? Nobody, as far as we can tell. Oh, here at FELTG we do what we can, but we don’t really have the responsibility to do it. We do it because it’s the right thing to do, and because our wonderful clients keep inviting us to do it. But really, shouldn’t there be a government entity held responsible for doing whatever it takes to make sure agencies fire people properly, to improve that success rate from 75% to something close to 99%?

And that, Madam/Mister President-to-Be is our first major recommendation. Put somebody in charge of improving the government’s success rate in removal actions. Don’t leave it up to individual agencies to know what to do. As we’ve discussed previously, too many employment law practitioners are still making basic mistakes, even though we’ve known that they were mistakes for almost a quarter of a century (don’t make me talk about “conjunctive charges” again).

And whomever/whatever you put in charge, hold them accountable. If the government’s success rate goes up, then that’s good. But if it stays the same or (god forbid) gets worse, sack them and get someone else. Accountability is too important not to hold someone accountable for it. Wiley@FELTG.com

You Don’t Know Discipline

,

By William Wiley

Whether you are a supervisor, attorney, human resources specialist, or union representative, many readers of this newsletter are in the business of employee accountability. Discipline is a major tool in the world of employee accountability. Yet, as much as we deal with it, and as important as it is in many ways, discipline is not an easy thing to define. And its definitions can be exceedingly important, varying from one forum to another. In this article, we here at FELTG try to sort them out for you.

MSPB: What is and is not discipline is tremendously important in the world of MSPB appeals. As every practitioner knows, when an agency is defending a removal penalty as being reasonable, the agency relies on the fabulous and famous Douglas Factors. Otherwise known as “penalty defense” factors, agencies who remove employees have had to analyze these 12 factors since 1981 to explain to the Board why the employee deserved to be fired rather than receive some lesser penalty.

Factor 3 in that list of mandatory factor consideration is the employee’s prior discipline history. The theory is that an employee who the supervisor has previously disciplined warrants a more severe penalty for a subsequent infraction than a similar employee who has not been given the benefit of discipline and a chance to learn from her mistakes. This theory of discipline is well established and often goes by the name “progressive discipline.”

To apply the theory of progressive discipline in support of a removal, it is critical to know what counts as discipline and what does not. In other words, we need a definition of a disciplinary act to distinguish “true” discipline from some lesser act on the part of the supervisor. Unfortunately, Congress did not see fit to define discipline in law. Fortunately, the Federal Circuit Court of Appeals early-on stepped into the breach and defined discipline for the purpose applying progressive discipline to defend a removal as having three mandatory characteristics:

  1. It must be in writing,
  2. It must be grievable, and
  3. It must be stored in an official employee file.

Bolling v. Air Force, 9 MSPR 335 (1981)

Universally throughout government, there are three documents that meet these criteria in support of a removal when applying the Douglas Factors. The Terrific Three are:

  1. Reprimand
  2. Suspension
  3. Demotion/Removal

By OPM regulations, these three documents are written, challengeable, and stored in an employee’s Official Personnel Folder, although somewhat briefly in the case of a reprimand. If these were the only supervisory actions used to correct behavior, the world would be a simpler and better place. In fact, that’s exactly what we teach in the FELTG supervisory training classes we present. Stay with these three, and your life will be simpler and your actions more defensible.

Unfortunately, some agency policy makers and discipline advisors have chosen to add other actions to the list of options that a supervisor has when trying to obtain employee compliance with a rule: warnings, counselings, admonishments, letters of expectation, letters of requirement, etc. I ran into a DoD agency many years ago that even had something officially called an “Oral Admonishment Reduced to Writing.” Sometimes one or more of these is listed in the agency’s Table of Penalties, sometimes in a collective bargaining agreement, and sometimes they have been used historically; therefore, they are still used today.

The overriding problem when we use these extra options is that there is no universal definition for them like there is for the Terrific Three. For example, when you give an Admonishment, can you use it for the purpose of applying the theory of Douglas Factor 3, progressive discipline? Well, we don’t know until we apply the Bolling criteria. In my experience, sometimes an Admonishment meets the criteria, but sometimes not. These extra options create a potential problem on appeal because, as every seasoned practitioner knows, the more opportunity you give yourself to make a mistake, the more likely it is that you will indeed make a mistake. There is a cost to using extra options that are not universally recognized when a case is challenged to a judge or to the Board. Every adverse thing you do to an employee can be challenged through the EEO complaint system. Why would you do more than necessary since the more you do, the more there is to become the subject of a complaint?

Costs aren’t necessarily to be avoided, however. One should always assess the potential benefits against the projected additional costs. So what’s the legal benefit of using any of these non-defined extra options?

There are none.

Oh, every now and then, someone in one of our classes will say that Letters of Warning and Letters of Counseling put the employee on notice of the rule, one of the Five Elements of Discipline. Yeah, well so does an email that states the rule, “Bill, be at your desk by 8:00 AM every morning.” And an email like this is not an “adverse action” that might have to be defended in a grievance or complaint, nor will it be confused with “prior discipline.” So the very best practice, by far, is to stick to the Terrific Three, avoid any creative other options, and your life will be much simpler and just as powerful. They are discipline.

OSC:  The US Office of Special Counsel is responsible for protecting whistleblowers against reprisal “personnel actions” taken by agency managers. We know that any of the Terrific Three counts as a personnel action for the purpose of this protection. But what about Admonishments? Letters of Counseling? If you give me a Letter of Warning, is it possible for OSC to conclude that you have reprised against me for whistleblowing? If OSC fails to act, might I convince an MSPB judge or the Board itself through an Individual Right of Action appeal that you are indeed a Whistleblower Repriser? And of course any failure to find reprisal by the Board can be challenged by me to any numbered federal circuit court of appeal in which I can establish jurisdiction, ultimately coming to rest on the desk of the Clerk at the US Supreme Court, if I have the patience and can figure out the forms. Yes, it is highly important to know what constitutes a disciplinary “personnel action” for the purpose of an OSC investigation and re-primal-claim resolution.

Unfortunately, the courts have come up with a different way of figuring this one out. Instead of relying on the Bolling criteria as an indicator of what counts as a disciplinary personnel action and what does not, the Federal Circuit has decided that it will look to the specific words of the contested document, whether it is called a Warning or Admonishment or something else. If the document a) accuses the employee of prior misconduct and b) threatens a suspension or removal in the future if the misconduct is repeated, then it is a “personnel action” for the purpose of allowing the employee to pursue a whistleblower reprisal claim. Ingram v. Army, Fed. Cir. No. 2015-3110 (August 10, 2015).

Here are two Letters of Admonishment:

A. “Bill, I admonish you to turn out the lights when you leave for the day.”

B. “Bill, I admonish you to turn out the lights when you leave for the day. If you don’t, next time I will reprimand you.”

Option B can take the employee through an OSC investigation, discovery and a hearing at MSPB, an appeal to the three Board members, to a federal circuit court, and finally to the Supremes. Option A takes him nowhere. These things, whatever you call them, have no value. Why in the world would an agency want to open up the possibility of this sort of confusion and extended litigation for something that is of no benefit and can be easily avoided? To paraphrase First Lady Nancy Reagan, “Just say no to extra options.” Focus on the Terrific Three. Learn to do what counts and what works.

EEOC:  The Commission uses yet another standard when assessing whether an agency has done something to an employee in reprisal for her EEO activity, or her membership in a protected category; race, sex, age, etc. Whereas MSPB is concerned with Bolling disciplinary actions, and OSC is concerned with the broader concept of “personnel actions,” EEOC stands up to protect federal employees from the super-broad “adverse employment actions.” See Medina v. Henderson, No. 98-5471, 1999 U.S. App. LEXIS 11042, 1999 WL 325497 (D.C. Cir. Apr. 30, 1999). Without doubt, EEOC considers reprimands, suspensions, and demotions to be adverse employment actions. But what about these Extra Options? If you give me a Letter of Counseling, can I file an EEO complaint against you? (Yes you can; e.g., Zenobia K., Complainant, v. DLA, EEOC No. 0120142873, July 15, 2016)

There is a surprising exception to the EEOC definition of adverse employment actions: PIP initiation letters. Many years ago, EEOC decided that since the initiation of a PIP is not itself adverse, but rather a preliminary act to a possible adverse employment action down the road, the initiation of a a performance Improvement Plan cannot be the subject of a discrimination complaint. A tip of our collective hats to the Commission for that good-sense ruling: e.g., Lopez v. Agriculture, EEOC No. 01A04897 (2000).

Bottom Line:  The minimum actions necessary to hold a federal civil servant accountable are significant in number and degree. Adding Extra Options to a collective bargaining agreement, agency policy, or individual counselor’s practice does the agency no good and carries with it the possibility wasted resources and appeal loss. Leonardo de Vinci once said, “Simplicity is the ultimate sophistication.” He would have fit in well here at FELTG.

wiley@feltg.com

 

What Should be Done About This Rating?

,

By William Wiley

Many of us use TripAdvisor or Yelp when we’re trying to decide where to have dinner. If we find ratings of four- and five-stars, we feel comfortable that the place will have decent-to-better food. However, if you’re like me, you avoid like the plague (or botulism) any place that’s rated primarily one- or two-stars. An eating establishment that is rated only one- or two-stars by its customers must have something seriously wrong with it.

So what would you say about a federal agency that asks its customers to rate it on Courtesy and Results on a five-star scale with:

** = Dissatisfied

*    = Very Dissatisfied

And 87% of the ratings are only one- or two-stars? What would you say if you found out that nearly half of the ratings were only one-star, that just under 50% of the citizens who had gone to that agency for help during FY-2015 were Very Dissatisfied with the Courtesy and Results they received? Would you not want to find out what was causing the low ratings, so you could understand better if something could be done to improve the situation?

Of course you would. You wouldn’t be staying in business very long as a private company with abysmally low ratings like that. We certainly should not expect less from our government than we do from a private business, at least on things like courtesy.

Historical Note: Did you know that President Jimmy Carter thought that courtesy towards the public on behalf of a federal agency was so important that he even had “discourtesy” added to the Civil Service Reform Act of 1978 as a specific type of misconduct warranting a suspension? Did you know that discourtesy is the ONLY act of misconduct specified in the CSRA that warrants discipline? Check it out: 5 USC 7503(a).

Well, the agency that has recently disclosed in its annual report to Congress that it was rated one-sies and two-sies by its Very Dissatisfied clientele last year is … drum roll, please … the US Office of Special Counsel. Yes, if you manage to dig through the first pages of its fascinating 52-page annual report (https://osc.gov/Resources/FINAL-FY-2015-Annual-Report.pdf) , way back at the bottom on page 44, you will find the results of the OSC client survey that contains these troublesome ratings.

It seems obvious that ratings like this are the result of either of two things:

  1. Discourteous behavior on the part of OSC employees, or
  2. An OSC clientele that is particularly sensitive to courtesy.

When dealing with OSC, each of us has limited personal experiences. About 350 clients participated in the 2015 survey. Each of those people had his own unique interactions with OSC staff. On a personal level, I’ve been dealing with OSC employees for over 35 years. Here at FELTG, one of the legal services we provide is representing agencies and individual managers in dealing with OSC. Without exception, although many times I do not agree with them, the representatives of OSC have been exceptionally courteous with me. Perhaps it’s my own internal charm that draws courtesy out of people (ha!) or perhaps I’ve just been lucky. Whatever it is, I cannot say I have ever experienced discourteous conduct on the part of OSC personnel.

Of course, perhaps others have. If we do a study and it turns out that OSC personnel are routinely being discourteous, then the solution to the ratings is to train those personnel in being courteous, and then hold them accountable for practicing what they have learned. There are a number of companies (e.g., Nordstrom) that teach customer courtesy. OSC could contract for training, and then impose discipline as specified in the CSRA for those who do not obey agency rules about courtesy. Alternatively, OSC management could implement Performance Improvement Plans for employees who fail a Courtesy critical element.

What’ that you say? OSC personnel don’t have any critical elements related to courtesy? Maybe that’s the start of the solution right there. [Special notice to OSC management: If you are unfamiliar with these two approaches to employee accountability, come to our MSPB Law Week seminar next scheduled for September 12-16, in Washington DC. Free coffee!]

OK, we do our little study and we find out that, for the most part, OSC personnel are just about as courteous as we would expect government employees to be, maybe even a bit better than some others. If that’s the case, then perhaps there’s something about the courtesy sensitivity of OSC clients. The people who go to OSC for help believe that they have been mistreated, that management officials within their employing agencies have committed prohibited personnel practices against them. In other words, they believe that they are right and others are wrong. Some might call them self-righteous; others might simply call them right. Whatever the case, if there’s a personality characteristic that makes OSC clientele more likely to feel that they’ve been treated in a discourteous manner, shouldn’t we acknowledge that in some way? And once acknowledged, maybe there are things we can do to reduce the feelings of discourtesy in this particularly sensitive group, sort of how we give anger management training to people who cannot control their anger. Sometimes folks need help.

When assessing any survey results, we have to keep in mind that there could be a problem with the data-gathering methodology. However, assuming that there’s no methodology problem in the survey that produced the results on page 44, and assuming that President Carter was right that courtesy in government is important, then it seems obvious to us here at FELTG that somebody should look into the cause for such low ratings. There are things that can be done to improve the situation whether the cause is discourteous OSC employees or courtesy-sensitive OSC clientele. Of course, we don’t get to run anything here at FELTG except ourselves, but SOMEBODY ought to be checking this out. Wiley@FELTG.com