Civil Service Reform and Performance Recognition

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By Barbara Haga, January 18, 2017

I am following up with another article regarding another recommendation included in the report Governing for Results: A Transition and Management Agenda to Lead Policy Change in a New Administration, issued on October 17.  This time I want to talk about performance recognition for Federal employees.

Taking Authority Away from Agencies  

The report notes that previous performance systems have not lived up to their potential, and the private sector seems to be moving away from traditional performance reviews.  The Transition Group acknowledges that there was no clear consensus in the group about what a new system should look like.  However, on page 25 of the report they list some options in a section entitled “Expand Employee Rewards and Pay-for-Performance Systems”:

Non-Financial Reward Systems: As an alternative to or companion to performance evaluation systems for all employees, create a robust employee recognition and reward initiative. 

Financial Reward Systems: If financial rewards are used, the Administration may want to take decisions for those rewards outside of the agency and provide for a third-party validation entity. To buffer criticism that bonuses are being given out at taxpayer expense, consider partnering with foundations in each mission area of government who could pledge funds to reward federal employees.

The first recommendation skips over the fact there is a merit principle that requires agencies to reward performance.  5 USC 2301(b)(3) states: “Equal pay should be provided for work of equal value, with appropriate consideration of both national and local rates paid by employers in the private sector, and appropriate incentives and recognition should be provided for excellence in performance (emphasis added).”  5 USC 4302(b)(4) requires agency appraisal systems to provide for “… recognizing and rewarding employees whose performance so warrants.”  If any of the performance recommendations included in the report are going to be implemented, then not only is 5 USC Chapter 43 going to need to be overhauled, but the merit principle is going to need to be changed, too.

The Transitions in Governance group is recommending non-financial rewards as an alternative or a companion to performance recognition. I am not sure what they have in mind.  It could be anything from the array of offerings under 5 CFR 451 from time off awards to career recognition awards to employee of the quarter programs.  It could be something entirely new.  Agencies actually have very broad latitude to create incentive award programs under the law and regulations as they exist today.  I agree with the transitions group that an incentive award program can be an effective management tool.  I think our best bet with getting a “bang for the buck” with recognition is to do it when something exceptional happens with an incentive award.

The group’s recommendation about taking award decision-making authority away from agencies is difficult to understand.   If we can’t have confidence in the decisions that managers make about that 1% or 1.5% of the personnel budget that most agencies are allowed to allocate for awards, how is it reasonable to count on them to manage huge programs, prepare regulations and defend agency policies to constituents?  If they can’t be trusted to effectively deal with decisions on rewards for good employees, how could we expect them to make tough decisions about discipline and firing and answering grievances and EEO complaints?

I think this recommendation buys into a perception that Federal managers don’t do a very good job of managing.  Surely there are examples of where there have been failures, but in a lot of cases, I think the awards system drives the bad decisions.  I don’t think that giving the authority to someone else is the answer.  Third-party validation to me would turn performance awards into a bureaucratic nightmare.  The award recommendations would be handed over to a group far away from where the accomplishments took place to people who would be outside of normal agency control.  Handing off important management decisions to folks outside of the chain of command is a scary proposition.  Folks who have a vested interest and have knowledge about the details of the work should be judging who warrants recognition.  We have seen problems with this handing off of authority before.  Anyone out there remember Merit Pay pools from the ’80s?  One could also ask the DoD employees who were under NSPS how well received the pay pool system was where managers many layers of supervision away from the recommending manager were deciding on whether the ratings and thus the pay rewards were warranted.

Get the Money from Somewhere Else

The second half of the recommendation says agencies should get some foundation to give money to use to reward Federal employees to combat the perception that taxpayers are footing the bill for the awards.  Taxpayers fund the salaries, and awards are just a small portion of that amount.  I frankly don’t think the average taxpayer cares until awards are handed out to those who don’t seem to deserve them – such as VA folks who are not taking care of patients as they should, or IT professionals whose programs don’t meet the requirements they were designed to address, or managers who don’t manage.  I don’t think it is an issue of using the taxpayer dollars, but making sure they are used where warranted.

The report takes a different tack.  To me, this is one of the stranger recommendations in this report.  Maybe NASA could find a group to give them award money – and maybe other agencies like NIH or CDC could do so.  But, I would think that a foundation would want to give their money in furtherance of some end that they want to foster.  For example, an aerospace group might give money to “reward” the entities within NASA that do aeronautical research but not to other parts of NASA engaged in climate research or space flight.  But, seriously, what about other agencies that don’t have that “draw’?  What foundation is going to sign up to give money for awards to the TSA, IRS, or SSA?  If a foundation is giving money, isn’t it reasonable to think that they are expecting something for it – some program achievements related to their areas of interest, some report back on what was achieved, some answers about who received award money?

A Better Idea?

I have an alternate solution.  I think the appraisal system would work much better if we got rid of performance recognition completely.   In next month’s column, I’ll explain why.

Haga@FELTG.com

Deck Chairs on the Titanic

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By William Wiley, January 18, 2017

Here we go again. Congress is convinced that it is impossible to fire bad federal employees. In response to that belief, we’ve seen a bevy of bills, proposals, and actual legislation attempting to remedy this situation. Here are a few:

  • Reduce the notice period in a removal from 30 days to 10 days.
  • Reduce the number of days to file an appeal from 30 days to 7 days.
  • Make Reprimands a permanent part of an employee’s file rather than only temporary.
  • Extend the probationary period to five years.
  • Limit a removal appeal to a final decision by an MSPB career administrative judge rather than a decision by the politically appointed Board members.
  • Annotate a former employee’s file to reflect that after he left government, an investigation revealed that he did bad things while a federal employee.
  • Allow Congress to effectively fire individual civil servants without due process.

Talk about rearranging the deck chairs. Woof.

Look. None of this is going to make much of a dent in the challenges we have in fairly holding employees accountable in the civil service. You can reduce the notice period to a minute and a half, make the probationary period 20 years, and include embarrassing photos of the employee at the office New Year’s party in his OPF forever, and you still are going to have agencies that do not fire enough nonproductive employees.

You would think that before changing the system to correct problems, one might actually look to see what is causing the problems. If those who proposed the above had done that, they would have found out that the difficulty with accountability in the civil service is not going to be fixed by these nipping-at-the-edges changes to what we do. Instead of this “Ready! Fire! Aim!” approach to civil service reform, Congress and the White House should identify what it is that’s causing these systemic problems.

Fortunately, that study has already been done for them. The good folks at MSPB’s Office of Policy and Evaluation recently released the results of a survey that found that the two major reasons that more bad employees are not fired are:

  1. Lack of support from upper management, and
  2. Lack of knowledge on the part of human resources staff.

Here at FELTG, based on our many years of experience, we would add as third to that list:

3.  Lack of knowledge on the part of agency legal counsel.

When we conduct accountability training for management officials, when they bemoan the fact that it’s hard to remove bad employees, they don’t say anything like, “Gee, if I could just have kept his Reprimand in his file permanently, I’d have been able to fire him.” No, they say, “I won’t get any support if I do this. If I fire the guy, there’s no guarantee that I’ll be able to replace him. Besides, HR and legal won’t let me do it.”

So, Congress/White House, if you want to improve accountability in the civil service (aka “drain it”), take action based on the known causes of the current problems, not what you might speculate about in the dark of the night from the corner of your lonely cluttered room. We’ve said it before in this newspaper, and we say it again, just in case you haven’t been reading us for very long. Set the accountability tone from the top. President Trump, here’s your Executive Order:

To all front-line supervisors, managers, executives, human resources specialists, and legal advisors:

From today forward, the Executive Branch will be built on employee accountability. If there are employees in government who are non-performers or who do not obey workplace rules, they should be disciplined and removed from service, promptly and fairly, if they do not improve their behavior. If a supervisor removes an employee for misconduct or performance, that supervisor will be able to replace that employee. All agency discipline and performance advisors will be trained, certified, and continually evaluated by the professionals at FELTG to ensure the adequacy of the service they provide and the possession of the knowledge necessary to hold civil servants accountable.

Separately, we once again put forth our FELTG belief that as long as there is a confrontational redress process available to employees, nothing is really going to change fundamentally until the concept of entitlement to a civil service position is re-evaluated. Last month, we put forward a proposal that we do away with the adversarial taking of an employee’s job via termination and replace it with a concept similar to that known as eminent domain, the right of a government or its agent to expropriate property for public use, with the payment of compensation. In our proposal, when a career employee reaches a point at which he is no longer performing acceptably, instead of firing him and dealing with the resulting appeals, complaints, and grievances, the agency could effectively buy back the job from the employee. The job would be valued based on grade level, years of service, and performance ratings; the agency would pay the employee that amount; and the entire process could not be challenged as it would be non-adversarial.

Some readers who commented on our suggestion thought it to be un-American, devoid of due process, and something Congress would never approve. Well, “Ha!” on you. Have you read the “Holman Rule” that the House of Representatives recently adopted? It makes our FELTG recommendation look downright wimpy in comparison. Wiley@FELTG.com

Practice Tip: Say What You Mean in Drafting Terms of Settlement Agreements

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By Deryn Sumner, January 18, 2017

In issuing one of its last decisions of 2016, the EEOC’s Office of Federal Operations left us with a nice reminder of the importance of being as specific as possible when drafting terms of settlement agreements.  Although everyone in the room might think they have the same understanding of what each side is promising to do, different interpretations can arise after the fact.  At the core, settlement agreements are contracts and are interpreted as such.  The complainant agrees to withdraw his or her EEO complaint with prejudice.  In some instances, he or she even agrees to do more than that, such as resign from the agency as of a specific date.  The agency may agree to a whole host of things (particularly if it is getting the employee to resign as part of the deal) including making monetary payment to the complainant, paying the complainant’s attorneys’ fees and costs, restoring leave, changing personnel files and performance evaluations, providing letters of reference, rescinding suspensions or other disciplinary actions, and even sometimes agreeing to reassign the complainant to a different position away from a specific supervisor.

That’s what the parties agreed to in the case of Ouida L. v. Department of Interior, EEOC Appeal No. 0120162588 (December 30, 2016).  Or at least that’s what the complainant thought she was receiving in exchange for agreeing to settle the case.  The language of the settlement agreement included the following language: “Reassign Complainant under the direct supervision of [the Senior Advisor for Hydropower (“S2”)] instead of [the PRO Manager (“S1”)] effective immediately.”

The decision notes that many of the issues which caused the complainant to file an EEO complaint stemmed from her interactions with her first-line supervisor “S1” and that during the processing of the EEO complaint, the complainant had been placed in a separate chain of command from S1.  After execution of the agreement, the Agency did as agreed and moved the complainant formally to reporting to the S2.  Who, of course, ends up retiring a year later only to be replaced by, you guessed it, S1 who assumes S2’s position.  The complainant contacts the Agency alleging a breach and the Agency finds that considering the plain language of the agreement, no breach occurred.  Which leads us to the appeal of that finding and the EEOC’s decision.

The complainant argued that the intent of the agreement was to place the complainant outside of the chain of command of S1.  The Agency argued that it did as it contracted to do when it reassigned the complainant to the direct supervision of S2, and that the language of the settlement agreement did not say that the complainant would not be in S1’s chain of command.

The Commission, after discussing the Plain Meaning Rule, agreed with the Agency.  It found that removal from S1’s chain of command was not one of the terms of the agreement and that there was no evidence that the settlement agreement was otherwise void, voidable, or that the complainant was misled into signing the agreement, particularly as she was represented by counsel.  The Commission cautioned, as we caution you, readers of the FELTG newsletter now, “if Complainant wanted such constraints imposed on the Agency employee, she should have included such a provision as part of the settlement agreement.”  (internal citations omitted).  Think about the result you want and draft the right language to achieve that result, lest you be stuck litigating enforcement matters forever and ever.  [Editor’s Note: Amen.] Sumner@FELTG.com

So, What Do You Do?

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By William Wiley, January 11, 2016

It’s a common question. One that most of us have a title-like elevator-answer for:

I’m an attorney.

I’m a human resources specialist.

Maybe even: I do labor relations for the XYZ Agency.

Yes, but what do you actually do when you’re performing in these roles? If you are an employment law practitioner, did you think to say:

I help supervisors fire bad government employees.

For some of you readers, that should be Line Number One in your mental position description. But we don’t often articulate our roles that way. It sounds mean. It acknowledges that the government has some employees who do not do their jobs at a minimum level of performance or who violate workplace rules. However, in these times of clarity and transparency, perhaps we should acknowledge that this is a major responsibility that many of us have.

Although it’s our job, I don’t think any of us relish the idea of doing it. We wish that there were no bad civil servants who could not be rehabilitated. We would prefer if the darned process wasn’t so confrontational. We hope that supervisors figure out how to otherwise deal with problem employees, by motivating them to work better or encouraging them to leave government voluntarily through some bi-lateral agreement. But when push comes to shove, when the job is just not getting done and nothing else works, a supervisor is left with two options: either approve that a non-productive employee continues on the government payroll being paid tax payer dollars to which he is not entitled, or fire him. When the option is firing, we advisors are obligated to step up to the plate, put on our big-girl/big-boy pants, and do what needs to be done.

If we acknowledge that this is our job, we also acknowledge that we are not the action officials. It is the front-line supervisor at most every federal agency who is delegated the responsibility to make these decisions. We are but advisors, counselors, technicians of the law. When a supervisor comes to us with a bad employee, it is our job to say, “What do you want to do with this guy?” Instead, what we often hear in our FELTG supervisory training classes is that “HR won’t let me do that” or “That’ll never get past legal.” Well, those of us with JD and HRS after our names were not hired to make these decisions. It’s the line managers who decide the outcome and we technicians who help them get there. At least, that’s the way it’s supposed to work. Yet in too many agencies we advisors frustrate managers by telling them they can’t do something that they want to do that in their opinion, would allow them to manage the government better.

Play this mind game with me for a minute. What if you were a private company – law firm, HR consult, whatever – and you held yourself out as a service provider for dealing with problem employees. If a manager came to you for advice on how to fire someone, and your response was that they should not fire the person, then you wouldn’t be in business very long. Of course, if what they wanted to do was illegal, you could tell the potential client that it wasn’t legal, and that you wouldn’t be part of something that was illegal. That’s just fine. But if you gave your advice as to the pros and cons, and the client wanted to go through with the firing anyway, I would think that you would help them do that. It is their responsibility to make those decisions and they bear the blame or credit if their decision is a good one.

Here’s an example of what I see all too often. In a classroom of attorneys I was working with a few months ago, I gave some standard advice for how to handle an employee in a particular situation. One of the participants disagreed and said that if I did that, the employee might be able to claim that the agency had interfered with her rights in the future should criminal charges be brought. There was no question as to whether the approach I was suggesting be taken was best for the supervisor. It was. However, the agency attorney who disagreed felt it might not be best for the employee. And without any case law to back up that speculation: “It might happen.” Well, it MIGHT HAPPEN, and I MIGHT NOT CARE because the employee is not my client. The agency supervisor is.

We should think of ourselves as service providers. The services we provide are intended to help agency supervisors, managers, and executives run the government. Next time a supervisor asks you for assistance, say to yourself, “How can I help this supervisor do what she wants to do?”  If instead you find yourself saying, “No, you can’t do that,” then please go re-read your mental PD.

Wiley@FELTG.com

A Use-or-Lose Holiday Gift from MSPB

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By William Wiley, January 3, 2017

It’s that time of year: taking it easy, eating waaaay too much sugar, giving gifts. Even MSPB is not beneath recognizing the holiday spirit with a little gift of its own to all of us in the world of federal sector employment law.

Sometimes MSPB presents are not particularly desirable, like the crazy disparate-penalty approach to comparative penalties and the dark-road of diminished respect for prior acts of discipline when it comes to selecting an eventual removal. Those are some gifts we’d return if we could, but even Nordstrom’s won’t take back that stuff.

This year as the holidays approached, the Board’s insightful and productive Office of Policy and Evaluation (OPE) bestowed on us all a gift that hopefully will provide some needed insight for the new administration as it develops it plans for draining the civil service swamp. As do many on Capitol Hill, the incoming President has spoken loudly about the need for more accountability in government, for federal agencies to be run more like businesses than as governmental agencies. Well, that all feels good in the gut and sounds powerful out there on the campaign trail. However, here at FELTG we prefer data and information rather than feelings and campaign speeches. Fortunately, our end-of-year present from MSPB’s OPE is just the sort of meat we all need to chew on as decisions are being made about a “new” civil service.

In mid-December, MSPB issued a report entitled “Addressing Misconduct in the Federal Civil Service: Management Perspectives; Supervisors Report the Greatest Barriers to Addressing Employee Misconduct Come from Within Agencies.” Given that there’s a wide-spread belief that agencies don’t fire enough bad employees, it would be helpful to have some data about why that might be. Well, happy New Year to us: OPE’s research provides all those policy-makers to-be in the White House and on the Hill just that sort of information:

  • Finding: About half of all proposed removals result in the employee leaving voluntarily. This is great news for agency officials. Although we must put cases together in preparation for an eventual challenge in an appeal, the reality is that it is unusual for us to actually have to defend a removal before MSPB. To this half of proposed removals that are never consummated because the employee quits, our FELTG experience would add to it a large group of employees who are indeed terminated, but who never file an appeal (old OPM numbers estimate that at about half of all removals), 60% who settle without a hearing after filing an appeal, and another group of employees who are poor performers who are PIPed. Our experience is that 50-60% of those employees leave voluntarily before removal is even proposed, sometimes within days of the PIP being initiated. Bottom Line: Although we always need to be prepared to defend a removal on appeal, maybe one in ten removal actions that get started actually make it to review by MSPB.
  • Finding: Fewer than half of first-line supervisors said they were confident they would be allowed to replace an employee fired for misconduct. Interestingly, 60-70% of managers and executives believe that replacement employees will be approved if an employee is removed for misconduct. It’s a bit unclear whether these managers and executives are referring to their ability to replace their own subordinates who are fired for misconduct, or to the ability of all supervisors to replace fired subordinates. Perhaps the new administration should give consideration to this back-fill dilemma when it starts trying to drain the civil service swamp. If you can accept that supervisors are hesitant to get rid of bad performers now because of this fear of not being able to replace them, just think how hesitant they will be to fire bad employees with a hiring freeze in place. A poor performer often is seen as better than no performer. Bottom Line: Check with upper management before you initiate a removal if you are concerned about the ability to back-fill once the employee is gone.
  • Finding: The greatest perceived barrier to a front-line supervisor initiating a removal is the agency’s perceived culture against firing bad employees. This is another official finding that parallels what we here at FELTG have run into when we teach accountability. “Upper management at this place doesn’t want us to remove employees. Human resources and legal are afraid of discrimination complaints, claims of whistleblower reprisal and the dreaded OSC, the union and it’s unfair labor practice charges and grievances, etc.” Supervisors feeling that they would not be supported by senior management and their discipline advisors was the Number One reported reason that bad employees are kept on the payroll when they should be terminated. Bottom Line: Hey, you managers and advisors out there. Do your damned jobs. Change the culture; not into one where everybody gets fired, but one in which everyone gets held accountable. With fairness and gusto.
  • Finding: The second greatest barrier to firing bad employees was the low quality of service provided by the human resources office. Woo, doggies. You regular readers know how we feel about that here at good old FELTG. We have howled against the moon for 15 years about the low quality of service provided by some human resources offices around the government. Too many employment law practitioners don’t know the basics of our system, and worst of all, don’t know what they don’t know. Not only do they not know what to do, they sit in their offices and hope that no one asks them for advice so that they can focus on other things, like lunch. If you are a human resources employment law professional, and you want to know if you are a good service provider, simply ask yourself three questions. During 2016, did you:
  1. Attend any FELTG training?
  2. Call any supervisors and ask, “Do you have any bad employees I can help you fire today?”
  3. Read every issue of the FELTG Newsletter?

Bottom Line: Two yes’s out of three questions, we will consider you part of our family and a decent service provider.  Three out of three, we are honored that you move among us. Free coffee at all of our seminars for you.

This OPE gift is a wonderful holiday present. We encourage you to read it in detail because it is just full of gems of wisdom beyond the ones we’ve highlighted here: http://www.mspb.gov/mspbsearch/viewdocs.aspx?docnumber=1363799&version=1369157&application=ACROBAT. If you run into any newly-minted Trumpettes as the new administration unfolds, maybe be sure they get a copy of it, as well.

Easier still, here is language that if it were embodied in a single email from your agency’s new Presidential appointee could change the course of civil service history. FELTG copyright hereby released should you choose to use it:

To all front-line supervisors, managers, executives, human resources specialists, and legal advisors:

From today forward, ours will be an agency built on employee accountability. If there are employees at this agency who are non-performers or who do not obey our rules, they should be disciplined and removed from service, promptly and fairly, if they do not improve their behavior. If a supervisor removes an employee for misconduct or performance, I personally guarantee that suervisor will be able to replace that employee. All agency discipline and performance advisors will be trained and continually evaluated by the professionals at FELTG to ensure the adequacy of the service they provide and the possession of the knowledge necessary to hold civil servants accountable.

FELTG. Always thinking ahead of the civil service curve. Wiley@FELTG.com

Two Lumps of Coal from the Guys in the Black Robes

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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

The Changes are Beginning

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By William Wiley, December 14, 2016

We’ve been predicting it here at FELTG for nearly a year. Congress and the in-coming administration are fed up with what they believe are glitches in our civil service system, which require that bad federal employees be coddled and tolerated rather than held accountable and removed from service. We’ve been saying you’ll need to be prepared for the civil service world to be different starting in 2017.

Well, our prediction was off by about three weeks. The civil service world is starting to change NOW. So buckle up your seat belt and prepare for a bumpy ride.

The first change that is going to make a direct impact on an agency’s ability to fire bad employees is the passage of the ”Administrative Leave Act of 2016” just last week. The “sense of Congress” behind that piece of legislation is that agencies have been abusing the right to place an employee on administrative leave (regular salary, but no work required) for years. You may have seen some of the articles in the media, the ones about the federal employee sent home by his agency on extended administrative leave pending the outcome of an agency investigation into suspected misconduct. My favorite recently was the SESer who was sent home for two years pending the outcome of an agency investigation. He was interviewed while he was putting in a vegetable garden behind his home in Falls Church, noting that it was his second growing season on full pay (and earning years of credit toward retirement, as well). Just think. If you’re some out-of-work coal miner in West Virginia who’s trying to get by on a few hundred dollars a month of unemployment insurance and you read about this guy, you just might be tempted to elect someone to run the government who promises to drain the swamp of stuff like this.

Well, the water has begun to recede. Last week, Congress passed legislation that, for the first time in history, places specific limitations on an agency’s ability to grant indefinite administrative leave. Effective no sooner than September 2017, and no later than May 2018, every major agency in the Executive Branch will have to have a policy in place that explains in detail when administrative leave will be approved, who can approve it, and acknowledges significant limits in its application. Fortunately, buried deep in the legislation that limits administrative leave, there’s a beautiful little nugget of change that provides for something that we here at FELTG have been campaigning for more than a decade.

But first, the major thrust of the legislation:

  • In general, an agency can place an employee in an administrative leave status no more than 10 workdays each calendar year. Currently, there is no limit.
  • The law creates a new category of excused absence distinct from administrative leave: Investigative Leave.
  • Investigative Leave (IL) is limited. Any agency manager (apparently) can be delegated the authority to impose up to 30 days of IL. However, any extensions beyond the initial 30 days can be implemented only by the agency’s Human Capital Officer. Extensions can only be in 30-day increments and cannot exceed a total of 90 days of extension.
  • Placing an employee on IL for more than 70 days can be challenged to the Office of Special Counsel as based on a prohibited personnel practice (most likely, whistleblowing).
  • You’re going to love this: If the employee resigns before the investigation is completed, and the investigation results in “adverse findings” about the employee, the agency has to include those findings in the employee’s Official Personnel Folder.
  1. The agency has to give the former employee notice that this is going to happen.
  2. The former employee has the right to respond to the notice in writing and with documents (thank god, no hearing).
  3. The former employee has the right to appeal the final decision of the agency to retain the notation to the Merit Systems Protection Board.

When I read about this requirement to document the OPF of a former employee, perhaps a now-retired senior citizen, I was reminded that in the Middle Ages, some societies would dig up the bodies of deceased individuals, try them in some sort of medieval court, then punish the body if it was found guilty of the charges. I once worked with a manger who objected to a troubled employee retiring because he wanted to “brand” her with a removal. Come on, kids. When they’re gone, they’re gone. What a spectacular waste of government time and energy to argue otherwise.

But enough said about the big stuff. If you conduct investigations, you will want to seriously read this new legislation and be as active as possible in the drafting of the implementing regulations. It’ll be a new world order for a lot of Inspectors General and Professional Responsibility agency investigators starting next year. And perhaps in some future FELTG newsletter, we’ll flesh out the details of what’s required under the new legislation if you conduct investigations. We’ll certainly be adding some new slides to our famous and fabulous Workplace Investigations seminar next scheduled for April 24-28, 2017.

It’s the non-investigatory nugget we’re after in this new law that will make your life better when it comes to firing bad employees. It has little to do with the “sense of Congress” to control leave abuse, but it’s tucked right in there along with all the restrictions on agency authority. The change that may save your life (no kidding), that we have fought for here at FELTG since 2001, is a new form of excused absence called Notice Leave.

If you want to read about that little gift, you’ll have to check out a later article in this here newsletter. After you read it, call the grandkids and tell them that the chances that you’ll be around until they graduate from high school just went up 1000%. That is IF your agency figures out how to take advantage of this long-overdue flexibility. And of course, we at FELTG are happy to tell agencies how to do just that. Wiley@FELTG.com

EEOC Issues its Own Performance Evaluation for 2016

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By Deryn Sumner, December 14, 2016

The end of the year is a good time for reflection.  What went well, what could have gone better, and how can we turn what we learned in 2016 into lessons learned so we can do better in 2017?  Since Gary Gilbert started the Firm where I work in 2005, we have dedicated at least a day to this reflection exercise every year. In December, every attorney gets sequestered in our large conference room to talk about our accomplishments, our losses, what inspired us, what depressed us, and what we want to be talking about and doing a year from now.

The EEOC also did some reflecting regarding its accomplishments and published a Performance and Accountability Report for fiscal year 2016 on November 15, 2016. I’ve already discussed some of the EEOC’s accomplishments this year in the newsletter, most notably the results of the Commission’s Select Task Force on the Study of Harassment in the Workplace, which was issued in June 2016. We’ve also talked about the EEOC’s deployment of a pilot program to have administrative judges hold initial status conferences instead of issuing Acknowledgment and Orders. The Report notes that these initial status conferences have “been instrumental in increasing settlement rates, reducing the motions practice, providing customer service by informing the parties about the hearings process, and allowing greater time for more complicated cases.”

I love numbers and data, so I was particularly interested in some of the statistics provided by the Report.  The Report noted various achievements regarding the federal sector arm of the Commission, many of which I’ve summarized and highlighted here:

  • Employees and applicants received $76.9 million in relief in federal sector cases;
  • The EEOC received 8,193 requests for hearing;
  • 6,792 complaints were resolved;
  • 3,523 appeals from final agency actions were received, which reflects a 3.45% decrease from the number of appeals filed in Fiscal Year 2015;
  • The EEOC focused on resolving the oldest appeals pending “or those that vindicate employees’ EEO rights and/or preserve their access to the EEO process;”
  • The EEOC resolved 3,751 appeals, of which 47.3% were resolved within 180 days of receipt;
  • The EEOC reversed procedural dismissals in 436 cases, which reflects 22.5% of appeals filed seeking such reversals;
  • The EEOC resolved 1,810, or 54.4%, of appeals that were or would have been 500 or more days old by the end of fiscal year 2016;
  • The EEOC issued 111 findings of discrimination, which reflects a 22.7% increase from last year.

I will admit that I have criticized the Commission for the lengthy delays in receiving decisions, but it is heartening to see a focus on resolving older cases and obtaining relief for victims of discrimination.  The complete Report is available here: https://www.eeoc.gov/eeoc/plan/upload/2016par.pdf. Sumner@FELTG.com

Civil Service Reform and Probation

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By Barbara Haga, December 14, 2016

I am taking advantage of this FELTG vehicle to share some thoughts that the new administration might take into account in making decisions about what sort of reform might improve the civil service system.  Lots of people are doing this – there seems to be a real possibility that we might see it in the next administration.  It’s time.  It’s been 38 years since the last major overhaul of the civil service system.

In this article, I am taking exception with the recommendations that have been made by one group. A report entitled “Governing for Results: A Transition and Management Agenda to Lead Policy Change in a New Administration” was issued on October 17 by a group of 12 organizations, including the Partnership for Public Service, the Federal Times, Government Executive, Young Government Leaders, and the Senior Executives Association.  You may access the document at this site:

https://s3-us-west-2.amazonaws.com/cmpdigital/transitions/Transitions2016Report.pdf

The report says that it was prepared to make suggestions on improving management of the Federal government, and was the culmination of 18 months of research “…involving a bipartisan collection of political and career officials in a variety of Administrations.”

When I read the report, I was surprised by some of the recommendations, and I will address other parts of the report next month.  In this column, I am going to deal with recommendations regarding the probationary period, including the suggested fix as well as the information it is based on.  There are some well-known organizations and the association that represents the interests of the Senior Executives whose names are on this report.  It is regrettable that they are confused about the basics of due process and that they are advising the new administration based on misinformation.

A Three to Five Year Probationary Period 

Page 27 of the report contains the following:

Currently federal employees receive merely a one-year probationary period and on day 366 they are automatically (without action from the supervisor) afforded permanent status.  This current policy (which is not enshrined in law and can be administratively changed) encourages a passive approval of employees who later present performance problems.

The Administration should extend the probationary period to 3-5 years and require a pro-active certification by a manager that a probationary employee should be granted permanent status.  If an employee is not certified by the 3-5 year period, the employee would be automatically terminated.

Part of the incorrect information here is that the employee becomes “permanent.”  Permanent is a term we use in the staffing business when a job doesn’t have a time limitation, like a temporary or a term appointment would have.  Probationary employees don’t become permanent, what they acquire is appeal rights.  So, to take action on day 366 involves the full complement of due process rights, including notice, right to representation, right to review the material relied upon, and a chance to appeal to the MSPB.

Those of us with significant experience in the business know that it isn’t always a one-year probationary period.  For example, non-preference eligibles in the excepted service have a two-year trial period before they acquire rights, not a one year period.  An employee converted in place may have a probationary period that is shorter than one year, because temporary service is credited toward completion of the probationary period (remember Van Wersch and McCormick from a few years ago?).  If you are not familiar with those two decisions, the MSPB prepared a report on navigating the probationary period which you can read here:

http://www.mspb.gov/mspbsearch/viewdocs.aspx?docnumber=276106&version=276415&application=ACROBAT.  As recommended in the report, OPM revised the regulations regarding crediting service toward completion of the probationary period.  Final regulations were issued on February 7, 2008 (73 FR 7187-7188).

The transition report is correct that OPM implements regulations to control the length and operation of probationary periods.  But their regulations don’t confer appeal rights – that’s 5 USC 75.  So, OPM can require probationary periods of twenty years, but the employees are still going to have appeal rights on day 366.

OPM can’t resolve this – if they could have I think they would have done it a long time ago.  The report should suggest that Congress change 5 USC 7511(a)(1)(A)(ii) to eliminate the phrase “who has completed 1 year of current continuous service under other than a temporary appointment limited to 1 year or less,” so that prior service doesn’t count.

Do We Need that Long to Decide?

I, for one, don’t think we need a longer probationary period.  I think we need to better manage what we have. I have never seen a case, in my decades of working in this business, when the manager didn’t know pretty quickly that the person didn’t have what the job required.  It just took him or her ten or eleven months to come to HR to do something about it.

Have we in the HR business contributed to not properly utilizing the probationary period?  I think we have.  In the olden days when I started doing ER work, most agencies sent notices to managers about 90 days before the probationary period was set to end requiring a certification that the employee should be retained.  With automation and downsizing in some agencies’ HR staffs, these certification reports were dropped and HR offices said that managers could now see the probationary period ending date in the system and that they should stay on top of that and let us know when something was going wrong.

I agree with the report’s suggestion that affirmative certification should be required.  I would propose that the notice go to the supervisor at six months and ask for one of three things: 1) an affirmative response at the six-month point the employee’s performance and on-the-job conduct support a positive decision on retention, 2) a response that the supervisor is undecided at this point regarding retention (which will trigger contact by the assigned HR/ER Specialist), and 3) a response that the supervisor recommends ending the employee’s employment (which will trigger contact by the assigned HR/ER Specialist.)  Then, of course, someone in HR needs to follow up on these reports to make sure that they are returned and, if not, that triggers contact by the assigned HR/ER Specialist.

A couple of other things are needed.  I would suggest repeating the notices at 9 months.  Top management needs to convey the message that the selection process isn’t the end – that until a final decision has been made to terminate or retain, the manager is still responsible for the decision about this use of precious resources.  Also, the HR staff needs to look at this use of their time as a good investment – not a burden.  If there is a bad match, we have one limited period to identify that and separate the employee.  If we wait till later, it’s a lot more work with more risk.  Who wouldn’t say that it is a reasonable use of one’s time to take action the easy way?

As always, comments are welcome! Haga@FELTG.com

Whoa, Doggies; This is a Bad One

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By William Wiley, December 14, 2016

I love the law. I adore justice. But sometimes I think that judges who interpret the law and thereby dispense justice need to spend a bit more time in the real world before they issue decisions that affect the real world.

Issue in point: the bad dark road that the Federal Circuit Court of Appeals is taking us down relative to due process in the appeal of removals from the civil service. For many years, the Board and the court have duked it out on the issue of due process. In the late ’80s and into the ’90s, when I was chief counsel to the Board chairman, MSPB issued decisions that attempted to reflect the real world of a federal workplace. Yes, yes, yes, an employee is entitled to know the reasons that his removal is proposed. However, the Board was comparatively good about forgiving agencies who did not notify the employee of every possible nit and jog that conceivably could have been some small part of a decision to fire somebody. When “extra” information would show up in the mind of the Deciding Official (DO), MSPB would evaluate whether it really made a difference to the employee and, more often than not, would find this “new” evidence to be duplicative or reinforcing, or otherwise not a violation of due process. Without saying it in a decision, the Board members were acknowledging their own personal experiences in a federal workplace, and recognizing that in the real world, a lot gets talked about around a removal, on many levels.  As long as an employee was informed of the big stuff relevant to making a removal decision, MSPB tended to ignore the little stuff that might have been part of the decision but was so minor as not to have had an adverse effect on the employee.

Unfortunately, those guys wearing the black robes over at the Federal Circuit did not have the same workplace experiences, and tended to think in terms of a perfect due process world, a world in which agencies had to inform the employee in the proposal letter of darned near EVERYTHING in the DO’s mind when he made the decision to remove. The big deal case in which the Federal Circuit emphasized its reality-lacking tell-all philosophy was Stone v. FDIC, 179 F.3d (Fed. Cir. 1999), a decision in which it spanked the Board from not reversing a removal based on due process grounds when the agency DO considered facts not in the proposal. From that point forward, smart agencies acted to make certain that DOs were careful to restrict their thoughts and their decision letters to only those facts noted in the proposal notices. The result is that these days, it is much more likely than it was previously, the DO will have to notify the employee of extra information that has come up during the proposal period and allow additional response time.  In fact, you regular readers might remember reading in our FELTG newsletter previously that we are almost at the point of suggesting that DOs issue draft decision letters to employees for response prior to a final decision being made. That’s how afraid we are that a DO will inadvertently rely upon something in a decision that was not included in the proposal.

Well, now we have a new decision from the Federal Circuit that pushes us even farther down that dark and elusive road of perfect due process, Federal Education Association v. DoD Schools, Fed. Cir. No. 2015-3173 (Nov 18, 2016). In that case, the third-level supervisor emailed the employee’s first- and second-level supervisors and said that if the employee had done what was alleged, “we need to try and terminate her.”  During the subsequent proposal and removal procedure, the employee was not informed of the pre-proposal email. Although the DO testified at hearing that he was not influenced in his decision to remove by the email, a 2 to 1 Federal Circuit set aside the removal based on a due process violation.  It reasoned that even though the email was pre-proposal and lacked actual influence, it was an ex parte communication “of the type likely to result in undue pressure upon the Deciding Official.”

Oh, my goodness. These types of managerial communications occur all the time in a federal workplace. Agencies do not fire career employees lightly. There is always a lot of pre-proposal discussion – among managers, Human Resources professionals, and legal offices – about what to do in a particular situation. Before FEA v. DoD, those discussions did not become part of a case unless they were relied upon by the DO in making her decision.  Now, I don’t know where the line is, the “type likely to result in undue pressure.”  Here the pressure came from up the chain of command.  But what if it came from the director of Human Resources?  Or, in an unprivileged manner from an agency attorney?  Is the safest solution to provide the employee an attachment to the proposal letter that lists in detail ALL of the pre-proposal communications held regarding the employee’s misconduct?

I hope I am over-reacting, that the court saw something unusual in this case that made this email a unique critical communication that we will not see again.  Alternatively, I’m hoping that the Federal Circuit will grant en banc review and set aside this misplaced unpractical holding. Because if I am right and this thing gets upheld, I’m not sure just what agency officials are supposed to do. Wiley@FELTG.com.