Nibbling in the Dark

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By William Wiley, November 15, 2017

Here’s one of the things wrong with Congress that affects you personally.

Recently, we’ve seen proposed legislation that would change the probationary period for new federal employees. During a probationary period, a bad civil servant can be fired with a snap of the fingers. No procedures, no burden of proof. It’s always a good idea for the supervisor to be able to articulate a reason in case the employee files a discrimination complaint. But otherwise, it is a relatively easy process to implement accountability during probation.

The probationary period in the federal service generally is a year long. I tried to do research to find out how long it has been that way, but I could not find when it started. At a minimum, we’ve had a one-year probationary period for at least 60 years. For what it’s worth, my research revealed that in the private sector, probationary periods are usually 30 days, maybe up to 90 days for some more senior positions.

The House Oversight and Government Reform Committee is now considering extending the probationary period from one year to two, The Ensuring a Qualified Civil Service Act (EQUALS). Sounds good, doesn’t it? Snappy acronym. Make it easier to fire bad government employees by delaying their property rights and appeal rights for an additional year after first hire.

Well, why the devil are they doing this? Seriously. Enacting legislation is hard. Subcommittees, committees, witnesses, reports, bicameral legislature so that it has to be done twice. If you’re going to go to all this trouble, shouldn’t it be for something really worthwhile?

Look. There’s nothing really wrong with extending the probationary period. Given this area of increased accountability in the civil service, this proposal would increase the pool of easy-to-fire federal employees. But we can’t really say that this particular pool of employees was causing us a problem anyway. If you look through MSPB’s decisions, you won’t find a whole bunch of employees who could not have been terminated during the first year of service because they were good employees, who then suddenly in the second year of employment became worthless dirt bags. MSPB’s data base supports the gut feeling that most of have in this business. If we’ve mistakenly hired an individual who demonstrates he is a bad employee, those shortcomings show up in the first year. If they do not, I know of no studies that show he is more likely to mess up in the second year than he is to mess up in a subsequent year.

Sure, some individuals get though probation and then demonstrate unacceptable performance the next year. However, my experience is that had the immediate supervisor been more careful, that unacceptable performance would have been detected during the first year. If it was, and the supervisor did not act proactively to terminate the employee during probation, it’s not the one-year law that’s a problem; it’s poor management that’s the problem.

Maybe we do need new laws to make it easier to fire bad government employees. Maybe we even need to do away with civil service protections altogether, allowing agencies without MSPB (or other) oversight to provide due process prior to termination. Perhaps it’s time to void the concept of a protected federal work place and shift completely to an employment at-will federal government workforce. Here at FELTG, we’re committed to an efficient accountable government. If that involves a protected civil service, that’s great. If it involves a different way of providing government services, we’re open to that, too.

The problem that Congress is causing you is that it does not take the time and effort to answer these fundamental questions as to how our federal government should be run; who should be employed to provide government services, and how they should be managed. Instead, it nibbles around the edges of our system. It thinks that increasing the probationary period by a year will make a difference. It reduces the notice period for a removal in DVA to 22 days compared to 30 days in all the other agencies. It empowers OSC to order agencies to propose the removal of whistleblower-reprising supervisors. These may or may not be decent ideas in isolation, but they do NOTHING to positively affect the structural design of our civil service.

Hey, Congress! Here’s a brilliant idea. Reserve a conference room somewhere, get a bunch of flip charts and coffee pots from the supply room, and stick the best and the brightest civil service scholars and practitioners in there with a lock on the door. Tell them that they won’t again see the light of day until they come up with a comprehensive plan for civil service over-haul. Over time, maybe they’ll decide that what we have now isn’t all that bad after all. Or, maybe they’ll decide that we need to scrap the whole system and just hire and fire civil servants like they hire and fire employees in the private sector: at will. Or, something in between. But at least we’d get a soup-to-nuts overview of what we want our government to be rather than this nickel-and-dime approach we’ve been seeing recently with these pitiful excuses for civil service reform.

Nibbling is bad if you’re on a diet trying to lose weight. It’s also a bad way to run the civil service. Wiley@FELTG.com

The Future of the Civil Service?

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By William Wiley, November 15, 2017

Here’s how we learn to do things in the federal civil service:

  1. Congress passes civil-service-related legislation that the President signs into law.
  2. Agencies read the law, take their best guess at what the details are, then start doing stuff (e.g., firing bad employees, if that’s what the law is about).
  3. The employee appeals the agency’s action (e.g., the firing) and the US Merit Systems Protection Board, then the courts, tell us whether the agency did the right thing, or misinterpreted the law.

If you are a regular reader of our fabulously free FELTG newsletter, you might remember that the President earlier this year signed into law a major revamping of the disciplinary procedures that apply to most DVA employees, 38 USC 714. The purpose of the legislation was to make it easier for supervisors at DVA to hold employees accountable for misconduct by making it easier to discipline them.

Our hard-working friends at DVA then began working on how to implement the new procedures. That’s Step 2, above. Just recently, we started getting elucidating decisions from MSPB (Step 3), and they look awfully good if you’re a fan of employee accountability. Here’s what we now know about the new law that applies to most DVA employees:

  • No Douglas Factor Analysis Required – Experienced practitioners know that in most all other agencies since the early ’80s, when an agency fires an employee for misconduct, it has to prove by a preponderance of the evidence that the penalty is not overly severe. To do this, the deciding official has to evaluate and document the 12 Douglas Factors that are relevant to a penalty decision, plus consider any other mitigating factors that the employee might provide in response to the proposed removal. In the cases we help agencies with here at FELTG, half of the time and effort in a removal action goes into developing this part of the agency’s defense. As importantly, penalty defense is an area of the removal that is fraught with the potential for due process violations. In the first initial decision issued by an AJ at the Board applying the new law, although DVA conservatively included a Douglas Factor analysis in its removal, the judge effectively ignored it. She noted that since 38 USC 714(d)(2)(B) prohibits the judge’s mitigation of the penalty, a Douglas-defense was irrelevant to upholding the removal once misconduct was proven. Akinpelu v. DVA, DA-0714-17-0474-I-1 (October 31, 2017)(ID).

 

  • Need Prove Only One Charge – For almost 40 years, agencies have had the burden of proving all the charges brought or risk losing the removal penalty. Multiple charges demonstrate the seriousness of what the employee has done and why removal is warranted. As we’ve taught in our FELTG seminars for nearly 20 years, it is paramount that the agency in defense of its removal prove by a preponderance of the evidence that the employee’s misconduct is serious enough to justify the firing. In the second initial decision issued by the Board under DVA’s new law, we learn that is no longer the situation in that agency. In that case, DVA brought seven charges against the employee ranging from having unauthorized guns, to failing to follow instructions, to engaging in hostile behavior. The judge reasoned that because DVA’s burden of proof is the substantial level rather than the higher preponderance level, “if the agency is able to meet its burden of proof with respect to any one charge in a multi-charge disciplinary action, that will be sufficient to affirm the removal.” The judge then picked two of the charges (one for back-up, I guess), adjudicated them, and affirmed the removal. Again, no Douglas Factor analysis. Kneipp v. DVA, PH-0714-17-0405-I-1 (November 2, 2017)(ID).

 

  • Decisions Under this Law are SHORT – Four pages and each of these judges was done. Compare that to the last initial decision you got under 5 USC Chapter 75.

 

Oh, I can just hear those wimpy weak-kneed practitioners now; “But Bill, these are just a couple of decisions from two judges of the many judges at MSPB. They have no precedential value, so why should we get all excited for DVA?” Well, Potato Head, if you had been an MSPB insider as I was for nearly a decade, you would know that no Board judge issues a decision in cases this important without the draft decision being reviewed and approved by the Chief Judge for the region. MSPB AJs are not statutorily-delegated independent adjudicatory authority as are ALJs. The Chief Judge of the region (aka the Regional Director) has the authority and responsibility to make certain that AJ decisions are “correct” before they are issued. These two decisions are from two different regions under the auspices of two separate chief judges. In my opinion, they speak for more than just the two judges involved.

Think these new principles through together. Hypothetically, DVA has an employee who breaks a rule; say, comes to work an hour late, and is thereby AWOL. DVA management decides to fire the employee for the hour of AWOL even though the employee has been a good employee for 20+ years, was under a lot of stress the morning he was tardy, and other employees under the supervision of the Deciding Official have come to work late without being fired. At any other agency in government, this kind of removal most likely would be reversed. At DVA under 38 USC 714, it’s a slam-dunk affirmed termination.

By the way, if you’re sitting there all smug thinking that this approach will never be found to satisfy due process by the courts, you would be mistaken. This lower burden of proof, requiring that only one “charge” be proven to be substantial evidence that removal is warranted, coupled with no-Douglas/no-mitigation has been the law for 40 years when you defend a Chapter 43 unacceptable performance removal.

What does all this mean for you? You don’t work at DVA. Why do you care that their ability to hold bad employees accountable just got humongous-ly easier for the supervisor? Well, my friends, think of it this way. If you’re the Secretary of any other agency in government, when you notice that your political-appointee buddies over at DVA are removing employees who do bad things left and right without the worries like you have concerning losing a big one and being embarrassed all over the Washington Post, how long would it take you to get to your oversight committees on Capitol Hill and ask for the same me-too authority? If you’re an employment law practitioner working nights and weekends to stay even with your case load, and you see your counterparts at DVA taking up golf and spending time with their kids, are you not as jealous as a person can be? Should we call around the agency car with the siren and red lights for you to go up to The Hill, or will you be helicoptering in instead?

Here at FELTG, we take no position as to whether this is the direction that our civil service should be going. Whether it likes it or not, DVA is the canary in the coal mine on this reduced-rights approach. If the new law continues to result in MSPB decisions that allow supervisors greater control over employees who do bad things, unless there’s a ground swell of objection other than from the usual suspects, we predict that someday this will be the extent of civil service protections. The future is now, at least over at DVA. Our FELTG-congratulations for this initial success and our ever-lasting thanks to the outstanding practitioner who flagged these decisions for us. We are, after all, in this together. Wiley@FELTG.com

Legalized Lying, Part II

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By William Wiley, November 6, 2017

Several months ago, we had an article in our FELTG newsletter about approved lying in an EEOC proceeding. Recently, I stumbled across a similar initial decision by an MSPB judge that gave me pause. Just how far can the requirement for medical record confidentiality be stretched?

The individual in this case applied for and held one of the most onerous jobs in the federal government. He was an FBI special agent assigned to Bureau’s hostage rescue team. Body armor, getting shot at, rappelling out of helicopters; all in a day’s work for those folks. You need to be trusted to have serious physical abilities and solid psychological credentials to provide that kind of important government service. To make sure that candidates for these positions possess all the necessary physical and mental characteristics necessary, the FBI requires individuals to undergo initial and periodic fitness for duty exams.

As part of that exam, our appellant in this case had been asked to list his current medications. In response, our appellant said, “None.” In fact, he said “None” a couple of times over a period of three years because he had a couple of medical exams during his employment.

Well, as it turns out, the answer “None” wasn’t exactly accurate. The appellant had in fact been medically prescribed and was taking anabolic steroids during the time of the exams. He did not disclose this fact in response to the “current medications” question because he believed it to be his “private medical information” and that the FBI did not have a legitimate need to know it. When the FBI eventually found out about the deception, it fired the steroid-taker for providing false or misleading information on the medical form, and lack of candor in the related investigation.

So, what do you think? Does it make for a better country if the FBI knows whether one of its hostage-rescue agents is taking steroids, a type of drug reported to sometimes cause increased aggressiveness? Should an agency be able to demand straightforwardness and candor from its employees during an investigation? Or, is America a brighter beacon if we allow special FBI agents to engage in deception about the drugs they are taking?

Well, if you voted for unidentified drug-taking and deception, you will like the rationale of the Board’s judge in this case. On appeal, the AJ reversed the removal and restored this individual to the agent-hood, reasoning that the FBI’s question about “current medications” was illegal. You see, the Americans with Disabilities Act limits an agency’s authority to demand medical information from its employees to only those medical facts that are consistent with a business necessity. To the judge in this case, that meant that the questions could not be as broad as asking for “current medications” and instead had to be narrowly tailored so that they were no more intrusive than necessary. As the question was illegal under the ADA, the employee cannot be faulted for falsifying his answer to it. Litton v. DoJ, DC-0752-14-1110-I-2 (September 22, 2017) (ID).

I am at a loss as to what the FBI could have done differently. A colleague with whom I was discussing this case suggested that maybe the “narrow tailoring” that would have made the question ADA-compliant would have been to ask the employee if he was taking any “current medications that might affect job performance.” Well, that puts the question on the employee to assess which of his medications might affect his performance. Maybe this guy never heard of “steroid rage.” It doesn’t seem practical to leave it up to the employee to decide which of his drugs could cause problems at work. The FBI’s medical examiner is in the better position to make that determination.

To me, this is one of those wayward decisions that makes the public think poorly of the civil service. No wonder that there are people on Capitol Hill who would abolish MSPB and the civil service protections when they hear about cases like this. If the Board is going to interpret our laws to allow FBI agents to make false statements about their medications, there really is something wrong with our system.

Of course, this is the opinion of a single administrative judge of the Board. No doubt the FBI will file a petition for review and have President Trump’s new Board members (if any are ever appointed, that is) review this decision. Perhaps those appointees will see things differently, recognizing that individuals have rights to medical information privacy, but not to the extent of deceiving their employer who legitimately needs the information.

Until then, let’s look on the bright side. If you are a medical-marijuana card-carrying civil-servant of states like my home of California, if your agency asks you what medications you are taking, according to the rationale of this judge, you don’t have to tell them about the dope. If your agency gets all specific and asks you if you’re using marijuana, perhaps that question exceeds what is called for by “business necessity.”

But, what do we know here at FELTG. Best to get your own legal advice on that before you try it. We love to read interesting cases, but we don’t like to cause them. Wiley@FELTG.com

Are You Qualified to be a Congressman or Senator?

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By William Wiley, November 1, 2017

Let’s say that you’re a big Capitol Hill policy maker; Member of Congress, Senator … take your pick. Then, let’s say that you want to add extra protections for your beloved whistleblowers. You want to make it easier for management officials who mistreat whistleblowers to be suspended and fired from government. You don’t think that the management official’s employing agency has been doing enough, that upper management at the agency does not act to discipline individuals who have mistreated whistleblowers. So, what do you do?

An easy answer is that you find somebody other than the employing agency to do the disciplining. An outside agency, unlike upper management, does not have a dog in the fight. When you look around for another agency, you find one that routinely has to decide whether prohibited personnel practices (PPPs) have occurred. As whistleblower reprisal is an obvious prohibited personnel practice, you might consider having this agency do the disciplining.

But wait! You come to realize that just last month, that same agency had been ordered to cough up a half-million dollars in attorney fees in a PPP case that it had prosecuted. It had proposed the removal of a management official based on eight charges, each an incident in which this outside agency had believed that it had preponderant evidence that the PPP had occurred. On review, the judge ruled that this outside agency had failed to present ANY evidence that ANY of the charges could be affirmed. The judge went beyond simply ordering fees, and criticized the outside agency’s theory that it put forward in support of its prosecution:

  1. Guilty people usually deny their guilt,
  2. The manager being prosecuted denied her guilt,
  3. Therefore, she must be guilty.

Woof.

It might not be a good idea to put that outside agency in charge of proposing discipline of a manager for reprising against a whistleblower. That agency has demonstrated in a very public manner – and at least one judge has concluded – that it does not know how to prove a charge (something we have taught for 20 years in our FELTG seminars). Probably best to look elsewhere for a removal-initiator based on suspected whistleblower reprisal.

If you have reached this conclusion, then you now have one more reason that you will not fit in on Capitol Hill. In a bipartisan piece of legislation, Congress unanimously passed, and the President signed in to law, a bill that this outside agency – let’s call it the Office of Special Counsel – should have the authority to:

  1. Conclude whether whistleblower reprisal has occurred, and
  2. Order the employing agency to propose a suspension, then removal for a repeat offender.

Keep in mind that OSC was created in large part to protect whistleblowers from reprisal. Therefore, it has a strong motivation to find whistleblower reprisal. By doing so, it makes Congress happy, and Congress tends to fund agencies that make it happy. With no impartial review, under this most recent bill OSC will have the authority to order an agency to propose a minimum three-day suspension for a first offense of mistreatment of a whistleblower, and termination for a second offense.

Are you thinking that this is crazy? Well, don’t stop me now because I’m just getting rolling.

In a rational world, if OSC found what it believed to be whistleblower reprisal, it would propose discipline to a judge at MSPB, and the judge would adjudicate whether the charge was affirmed and the penalty was reasonable. This is what OSC has been doing for four decades. Under this new legislation, instead of initiating proposed discipline and standing to win or lose when MSPB issues a decision on the proposal, OSC simply orders the employing agency to propose the suspension/removal. The decision regarding the proposal will then be made by a senior manager in the agency, an agency that may well not believe that whistleblower reprisal has occurred. If the agency’s deciding official does indeed conclude that removal is warranted, then it’s the agency – not OSC – that has to devote its resources to defending the removal before MSPB. As icing on the cake of judicial irrationality, it appears from a cold read of the bill that the burden in one of these removals is on the manager to prove he did not reprise, not on the agency to prove that he did.

Double-woof.

Here at FELTG, we sincerely regret that OSC lost a prosecution that resulted in it being ordered to pay a good chunk of its annual budget as attorney fees. Those are wasted tax dollars and a harmed management official that do nothing to help us have a better government. However, this legislative trick of having OSC order an agency to take the heat by directing the agency to do the disciplining, regardless of the agency’s independent view of whether discipline is warranted, is ridiculous.

Here are the details of this mess. The new legislation is named the “Dr. Chris Kirkpatrick Whistleblower Protection Act of 2017” and empowers IGs, MSPB, and an assortment of judges to require that agencies propose the discipline of whistleblower reprisers. The decision that orders OSC to pay a whole bunch of money as attorney fees is Coffman v. OSC, CB-1215-14-0012-A-1 (September 29, 2017).

As they say in the poker business, “Read ‘em and weep.” Wiley@FELTG.com

Litigation Constipation

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By William Wiley, October 18, 2017

In the world of civil service law, we live and die by the works of our alphabetical oversight agencies: MSPB, EEOC, FLRA, OPM, FSIP, and OSC. When they shut down, some part of the federal employment system shuts down, as well.

Coming out of the Obama administration into the Trump administration, we were starting to hurt. A number of vacancies and early resignations or firings had left the senior-most political positions in those agencies barren. People had left, but none were being nominated or appointed to replace them.

Recently, however, the White House seems to have recognized the important roles these agencies play in our government, and appointments began to flow: new commissioners at EEOC, two new nominees and a re-appointment at FLRA, a new director at OPM, seven new members of the Federal Service Impasses Panel, and a new Special Counsel over at OSC. Yes, White House personnel has been working overtime to get these civil service oversight agencies up and running and carrying their respective loads relative to federal employee rights and protections.

Except for one.

What in the world is going on with MSPB? The agency responsible for making sure that removals and other serious actions taken by agencies are implemented fairly has effectively been shut down since the first week in January when one of the two remaining members quit early. A single hold-over member of a three-member Board cannot issue decisions for the lack of a quorum. Therefore, for the past 35 weeks or so, approximately 750 challenges to decisions made by MSPB’s cadre of Administrative Judges have been added to the Board’s headquarters backlog with nothing coming out the other end. And every work day, another four or five appeals are added to the pile, appeals in which the future of some poor fired soul hangs in the balance, and agency back pay liability continues to stack up.

The word on the street is that the remaining member, Acting Chairman Mark Robbins (a Republican by persuasion), is hanging in there, doing a yeoman’s job of voting on four or five cases every day as they are presented to him. Of course, no Board opinions can be issued with just one vote. That means that somewhere within MSPB’s palatial office space there’s a room filled with about 750 case files with decisions already drafted by the career staff, and Chairman Robbin’s vote sheet attached to the top. I’ve been there. Some files are six inches think; some are six copy paper boxes in size. Some appeals are exceedingly easy to resolve, others are exceedingly hard. And they are just sitting there. Waiting.

So how will this tale of woe come to an end? Well, poopsie, I’m glad you asked. There are two likely optional outcomes:

  1. The President nominates and the Senate confirms a single new Board member. Hopefully, it would be someone like our colleagues, Peter Broida, Barbara Haga or Rock Rockenbach. Someone who already knows Board law cold and could begin immediately voting on cases relying on a deep well of previously-accumulated civil service law knowledge. That new member could be locked in the storeroom with all those pending cases, and fed red meat and Mountain Dew until he or she had voted on them all. Along with the prior concurring vote of Chairman Robbins, those appeals that now have votes from two members can be issued post haste, resolving issues some of which have been pending for a couple of years.
  2. Chairman Robbins cannot be replaced until his term expires at the end of February. The President could wait until that time to name two new Republican members (or three new members, if he has a Democrat he likes) thereby replacing Mr. Robbins and simultaneously voiding his 1000 votes that have accumulated over the previous 14 months. Then, we would lock the new members in that room full of pending cases, and hope to goodness that they are quick learners agreeable in their jurisprudence. If we end up with this option, we’re going to need a LOT of Mountain Dew.

Were it not for the activity with the other appointments, it would be easy to conclude that the White House just hadn’t begun to focus on staffing up the civil service oversight agencies. But they have indeed been focused in White House personnel, even needing to nominate a second OPM director when the first nominee withdrew. It’s starting to appear as if there is a method to their madness, a rationale for letting all these cases accumulate when one name for one Board position sent to the Hill early last spring would have avoided this litigation constipation.

What could that rationale be? Are they intentionally positioning themselves to void Chairman Robbins’ votes? Are they having trouble finding someone willing to be appointed to a job that has a ten-month backlog of work to be done? Do they mistakenly believe that by keeping the Board below quorum, the Administrative Judges cannot set aside agency removal actions?

Or, is there something bigger on the horizon? There would be no need to name members to a Board if the federal agency which housed that Board no longer existed. Recent changes to the law have made MSPB irrelevant to certain employees at DVA. More changes in the future could make it irrelevant to the entire civil service, reducing the due process required for removals from federal employment to decisions made within an agency. Next November will be the 40th anniversary of the law that created MSPB. Perhaps there will be no need for a 41st Board anniversary.

Well, here at FELTG, we don’t know the answers. All we do know is that there is an insidious continuing harm being done to the civil service system every day that MSPB is not functioning. Here’s hoping that if there is indeed a plan behind the madness, that the benefit of the delay in filling these positions is worth the cost of letting then sit vacant. Wiley@FELTG.COM

Are You a Bureaucrat or are You the Next Steve Jobs?

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By William Wiley, October 18, 2017

Here’s a little quiz to demonstrate the difference between the private sector world and the world of bureaucratic government employment:

When confronted with the question, can you do X, you look for:

  1. Some authority that says you can do X.
  2. Some prohibition that says you cannot do X.

We get this sort of question here at FELTG once or twice a month. An inquisitive practitioner who has been through one of our training programs will say something like, “In the webinar yesterday, you said we should do blah-blah-blah. Do you have a case on point that says that blah-blah-blah is legal?”

Many times, our response is, “No, there’s no authority that says specifically that you can do blah-blah-blah. However, blah-blah-blah is a logical extension of the current case law, and there’s nothing that says you cannot do blah-blah-blah.”

Even though we don’t always hear back, I bet this is what’s going on in some minds when they read our response:

Oh, Mr. Bill. I’m so afraid. You haven’t given me anything that says specifically I CAN do blah-blah-blah. What if I were to do it and it turns out I don’t have the authority to do it? I’m so scared.

Well, pucker up your frightened little lips and kiss my sweet advice. Textbooks that criticize government often point out that whereas in the private sector an individual gets rewarded for doing new and creative things (e.g., the iPhone), in a bureaucracy an individual gets rewarded for not making mistakes (where some government agencies might still be using rotary dial telephones if we let them). Rather than ask, “Where does it say I can do that?” the better question is, “Does it say anywhere that I cannot do that?”

Make this change to your approach in how to do your job, and your world will be more fun and creative, and just might be good for America. I can’t imagine my end coming and being post-mortem happy that they wrote on my tombstone, “At least he didn’t make many mistakes.”

If you’re not on the edge, you’re taking up too much room. Rather than look for guidance, look for opportunity. Wiley@FELTG.com

A Five-Rating Performance Rating Plan is Asking for Trouble

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By William Wiley, October 18, 2017

If your performance rating system has five levels, with a Marginal or Minimal (or Partially Achieved Expected results) rating level between Fully Successful and Unacceptable, you absolutely need to read this article.

Many years ago, MSPB started noticing an odd type of performance standard being used to fire poor performers. Some agencies were describing the worst sort of performance possible (e.g., “Never gets anything done on time”) and labeling it Marginal performance. When I would see those standards, I would think to myself, “That’s the job I want to have!” because I could never be fired for not doing anything. Marginally performing civil servants get to keep their jobs until retirement, although they would retire at Step One of their pay grade without receiving any within-grade step increases during their career. Still, not a bad retirement income.

For reasons I never quite understood, MSPB began referring to this kind of performance standard as a “backwards” standard. The Board reasoned that by stating the negative accomplishment as the Marginal level of performance, the agency was taking a “backwards” approach; that the Marginal level should state what the employee needs to do, not what he needs not to do. I always thought it made more sense to analyze these things as the agency writing an Unacceptable level description, but misnaming it the Marginal level. But who am I to tell the Board what to do?

This is an absolutely critical concept for the practitioner to grasp. Use a backwards performance standard to fire an employee and you will get your removal action overturned muy quick-o. Where a “less than fully successful” rating in a critical element allows a summary rating of “Marginal,” an agency fatally errs by not advising an appellant of what is required to reach the marginal level and thereby avoid a performance-based action. See Van Prichard v. DoD, 117 MSPR 88 (2011), aff’d 484 F. App’x 489 (Fed. Cir. 2012). A performance standard written at the minimally-satisfactory level that describes unacceptable performance in terms of what an employee should not do, but fails to inform her of what is necessary to obtain acceptable performance, is an invalid “backwards” standard. See, generally, Eibel v. Navy, 857 F.2d 1439 (Fed. Cir. 1988).

A Marginal performance standard is an invalid backwards standard because, although it is written at the “minimally successful” level, it fails to inform the appellant of what is necessary to obtain an acceptable level of performance, and instead describes what he should not do. Romero v. EEOC, 55 MSPR 527, 534 n. 5 (1992), aff’d, 22 F.3d 1104 (Fed. Cir. 1994) (Table). Because the Marginal standard does not define the minimal performance necessary for the appellant to remain employed in his position, the agency fails to distinguish between Marginal and Unacceptable performance as a practical matter. See Burroughs v. HHS, 49 MSPR 644 (1991).

For example, in Wilson v. HHS, 770 F.2d 1048 (Fed. Cir. 1985), the Court found that the following Marginal standard was almost a parody of a proper standard:

Coordinates controls, and directs activities of subordinate staff to insure adequate service to the public by appropriate management principles. Assignments and instructions to staff are hastily made and sometimes misunderstood. Direction of work activities is occasionally effective in achieving objectives.

Wilson, 770 F.2d at 1053.

Here’s another one:

Marginally acceptable; needs improvement; inconsistently meets Fully Successful performance requirements. The employee has difficulties in meeting expectations. Actions taken by the employee are sometimes inappropriate or marginally effective. Organizational goals and objectives are met only as a result of close supervision. This is the minimum level of acceptable performance for retention on the job. Improvement is necessary. Examples include:

  • Work assignments occasionally require major revisions or often require minor revisions;
  • Inconsistently applies technical knowledge to work assignments;
  • Employee shows a lack of adherence to required procedures, instructions, and/or formats on work assignments;
  • Employee is reluctant to adapt to changes in priorities, procedures or program direction which may contribute to the negative impact on program performance, productivity, morale, organizational effectiveness and/or customer satisfaction needs improvement.

Sommer v. HHS, MSPB No. SF-0432-16-0063-I-1 (February 22, 2016) (ID)

A number of agencies have modified their appraisal systems to do away with a Marginal rating, in part because of this problem. If you are in a policy position within your agency, you might well want to follow that example. Hey, who wants to go to The Hill and tell their oversight committee how proud the agency is that all of its employees are at least Marginal civil servants?

If you cannot change things from a policy position, be sure to watch out for backwards standards whenever you’re putting together a performance case. A backwards standard is void ab initio and cannot be “fleshed out” or otherwise explained in the PIP initiation letter. If you find one, you need to start all over, fix it with a rewritten standard, then give the employee a warm-up period of a few weeks to get used to it before you initiate a PIP.

If you need more of this mundane-but-critical insight into performance accountability, consider signing up for the next FELTG MSPB Law Week open-enrollment seminar in Washington, DC March 12-16 or Denver, CO June 4-8 (assuming, of course, that we still have an MSPB by then). But don’t do that if you work for Navy, because we’ll be coming to you with a full week of MSPB Law Week in late January, in lovely Silverdale, Washington. What’s that you say? Why don’t we come to YOUR agency with all this good stuff? Well, we’d be just delighted and honored to do so. Give us a call to make your 2018 the best year ever for winning MSPB appeals and holding your employees accountable for performance and conduct: 844-at-FELTG. Wiley@FELTG.com

An Open Letter to OPM

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By William Wiley, October 12, 2017

If you regularly read the Washington Post or some other big city newspaper, you no doubt have noticed this: about once a month or so, some self-righteous, opinionated, backwater organization will spend a bucket of money to buy an entire page of advertisement to display an “open letter” imploring some powerful individual or organization to do whatever it is that the open-letter author thinks is important. As our little FELTG training group is nothing if not self-righteous, opinionated, and deep, deep backwater, here’s our full page ad for the month. In the spirit of Martin Luther, we plan to nail it to the door of OPM over on E Street NW, just as soon as we figure out how to nail to plate glass:

Dear OPM,

Late this past summer, you issued a proposed instruction that would place significant burdens on agency officials who need to implement Notice Leave to get an individual out of a government workplace during the 30-day pendency of a proposed removal. Although you promised a final regulation by late September, you decided to indefinitely delay issuing the final version of that instruction for reasons unexplained to the general public.

Hopefully, you made that decision because you got lots of thoughtful comments from readers of this here newsletter and other experienced souls that your proposed regulation was ill-conceived and most likely will get people killed. Well, just in case you’re still thinking about what to do, we offer a single name for your consideration:

Stephen Paddock

Mr. Paddock was the Las Vegas shooter. With no history of violence, no police record, and no documented mental disabilities, he took it upon himself to kill 58 of our fellow citizens, and wound nearly 500 more by shooting at them from an upper floor of a Las Vegas hotel. As of this writing, none of the smart guys has discovered a motive for the shootings. Until we get more information, the best guess is that he just snapped; methodically stock-piling enough guns and ammunition to arm a platoon of soldiers before taking aim and firing at a field of innocents.

We now know that Mr. Paddock had previously been a federal employee for about a decade. He worked at IRS, USPS, and the Defense Contracting Agency, according to media reports. Before you issue your final rule relative to Notice Leave, stop and think for a moment what might have happened if Mr. Paddock had gotten himself in trouble with one of those agencies, perhaps repeatedly coming to work late or failing a performance improvement plan. If nothing else worked to correct his behavior, his supervisor would eventually have proposed his termination, because that’s what we ask our supervisors to do regarding employee accountability.

If your stupid proposed regulation had been in place when that happened, Mr. Paddock’s supervisor most likely would have kept him at work, either in his original workplace in a government building, or perhaps at home on telework where he would still have access to the agency’s computerized data files, maybe even retaining his government credentials that allow him to enter government property. For 30 days. That’s because your proposed Notice Leave rule makes it so difficult for front line supervisors to place an employee in a paid non-duty status, most would not take the trouble to do it. Hey, why should they? Mr. Paddock hasn’t displayed any signs of potential violence. Yes, he’s a grumpy old man, but there are lots of grumpy old men around these days. When you’re putting together the paperwork to fire someone, the last thing you want to do is go through additional paperwork and obtain higher level approval in invoke Notice Leave, as your proposed rule would have required.

Mr. Paddock lived in Nevada, a state with some of the loosest gun laws in the country; e.g., no limit on the number of guns that can be owned and no requirement to have a gun permit to buy a gun. I wonder how many guns and how much ammunition a Nevada resident can amass in a 30-day Notice Period preceding a removal for a government position? And I wonder how much stress a government employee feels when issued a proposed removal notice?

Look, OPM, are you still with us? We implore you. Act like one of the smart guys. You cannot possibly be thinking that 30 days of salary is somehow more important than the lives of our civil servants and the public they serve. You really aren’t interested in denying an agency the ability to use 30 days of paid non-duty time if it saves a civil servant life; you’re interested in curtailing the abuse of this flexibility. So please, rewrite your rule so that, categorically, front line supervisors have the unrestrained authority to place an employee on Notice Leave for 30 days any time a removal is proposed. If you’re concerned about abuse, require all the levels of approval and additional documentation for Notice Leave beyond 30 days as you now have in your proposed rule. Not only might that save lives, as a bonus, it also gives the agency a strong incentive to make decisions on proposed removals promptly.

Come on, come on, come on. Help make America great. Do it for the children. Have a big heart. Get smart. Go green. Take guidance from how the White House fires people. Listen to those of us who have been around a while. Make it easy to invoke Notice Leave and FELTG will personally buy lunch for whoever it is over there that gives the final approval for the rewritten regulation. Heck, we’ll even buy lunch for the whole darned rewrite team, if the change goes through to make Notice Leave easily available.

We have skin in this game, as well, because our speakers work in Federal work spaces throughout government. We don’t want to have to explain to their grandkids that grandpa is not coming home from his last onsite training seminar because of some short-sighted OPM regulation.

And for what it’s worth, you have skin in this game, as well. The next Stephen Paddock could be working right down the hall from you, right now on E Street NW. See him? That guy with the funny mustache and smirk on his face? The one with the Bullets and Bombs magazine in his desk drawer? How’d you feel handing that moron a proposed removal letter?

Yeah, us too.

With All Love and Affection,

FELTG

Wiley@FELTG.com

Painting Your House

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By William Wiley, October 4, 2017

I think that just about everyone at one time or another has painted a room, or perhaps hired someone to paint a room for them. Not as easy as it looks, if you’ve had this experience. And a mess to clean up if you make mistakes.

So let’s say you have a 10-bedroom house, a typical size home for you highly-paid civil servants. You’re busy running the government every day, so you jump on Task Rabbit or some other handyman service, and hire yourself a by-the-hour painter. The guy shows up, has the credentials and experience to do the job, so you turn him loose. You tell him how you want things done: No paint on anything, but the walls. The painter has brought the flat white paint you asked for, so you leave him to do the first room while you go to your highly important desk in that highly important federal agency.

When you return that evening, the painter has finished the work on the first room. He’s left a bill for eight hours of work, which is about what you expected. But the quality of the paint job is not. The face-plates are plastered to the wall with paint. The window glass has ragged edges. The floor has white speckles where it is not supposed to have any speckles. The guy did a bad job.

Pop Quiz No. 1: What will you do when the guy shows up tomorrow morning to start on the second room?

A. Fire him.

B. Give him a second chance.

Yeah, I’d fire the guy, too. Life’s short. Paint’s expensive. There are lots of potential painters on Task Rabbit. Find yourself a painter who can follow instructions.

But wait! Your roommate (husband, wife, whatever) is more forgiving than are you. She implores that you give the dude a second chance; an opportunity to demonstrate acceptable performance. As your roommate is paying for half of the paint job, and as it is her week to do the cooking, you decide to go along with her suggestion in the interest of peace and harmony, and edible dinners.

So when the guy shows up on Day Two for room number two, you reinforce your very specific instructions: face-plates removed from the electrical outlets, masking tape on the glass, and the entire floor covered in tarps. You tell him if he continues to mess up, to fail to demonstrate acceptable performance, you will fire him. Then, you take off for your spare bedroom as you are working flexiplace today.

At noon on your lunch break, you wander down the hall to see how he’s doing on room number two. Sadly, the outcome is no better than yesterday. One of the windows is completely obliterated with paint. The light switch as well as the face-plate is covered in paint. The speckles on the floor today are pink because he brought the wrong color paint. Pop Quiz Question No. 2: What will you do?

A. Fire him. End the misery. Save yourself four hours of pay. He has failed to demonstrate acceptable performance.

B. Let him finish painting room number two, then fire him.

C. Reconsider your original decision to have only one room in which to demonstrate acceptable performance, advise him he can have not one, but a three-room opportunity period, then wait to see how he does after three more rooms.

I have to believe that most rational people would have fired this guy after the first day. If convinced to give him another chance by a soft-hearted roommate, I have to believe that most people would have fired him at noon the second day. Why waste unnecessary money on somebody who cannot do his job? Why put yourself in a position of a) not getting work done that needs to be done, and b) giving yourself a bigger and bigger mess to clean up once it’s all over? Some may come to different conclusions, but I think that most readers would pick A. and A. for our two pop quizzes.

So why in the world do too many practitioners not take this same approach to PIPing a poorly performing federal employee? Here’s what the law has said for nearly 40 years about how a federal supervisor should deal with unacceptable performance:

5 USC 4302(b)(6): Reassign, reduce in grade, or remove employees who continue to have unacceptable performance but only after an opportunity to demonstrate acceptable performance.

The law is like your soft-hearted roommate. It won’t let you fire the employee the first time you find poor performance. Beyond that, though, it gives the supervisor significant flexibility to do what needs to be done during the demonstration period. Unfortunately, here at FELTG we run into practitioners all the time who advise supervisors to paint several rooms before firing the bad handyman (e.g., 60, 90, and 120-day PIPs) or insist that the supervisor allow the employee to complete the PIP even if they fail it early (e.g., finish painting everything in the room pink).

Folks, it is rare to find a federal law that doesn’t make sense. It is a nonsensical interpretation of this particular federal law if you believe it means that employees have to be given several months to demonstrate acceptable performance or given the opportunity to finish a PIP if they fail the PIP early. Interpret legal requirements rationally, as you would act in the real world outside the civil service workplace. Even you softies out there would not give a bad painter excessive opportunities to demonstrate acceptable painting ability. There is no excuse for not acting as rationally when you advise a supervisor who supervises a non-performer.

Be brave. Be rational. Advise supervisors to use 30 day PIPs and fire the guy if he demonstrates failure early. If you don’t, we’ll send one of our poorly-trained but highly-motivated FELTG handymen to your office and paint the place pink. That should remind you to be strong.

Of course, if your office already is painted pink, we are jealous. Because we think that pink is a just dandy color for some federal agencies. Wiley@FELTG.com

The Simplest Rule of All

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By William Wiley, September 19, 2017

We routinely invite participants in our FELTG webinars to email us with follow-up questions if we can be of further help. The fundamental question below came from a recent participant who had a head-hanging problem. Unfortunately, it is too late for us to help this time, but next time, she’ll be prepared:

Dear FELTG Sensei-

I struggled for four years with a deeply troublesome employee and I eventually left the job because of him. He was an older male and very crafty. My successors and I had no end of trouble with his behaviors, one of which was to hang his head and stare into his lap at meetings (and generally require us to work very hard to extract more verbal input), keeping his door shut, etc. Nonetheless I’m amazed to know that, as you have taught, I could have implemented a rule that he could no longer hang his head and stare at his lap in meetings, or that his door must remain open unless he’s in a meeting. I have no doubt that if I had issued a written reprimand for one thing, he would then comply, and implement some other troublesome/disruptive behavior. 

So how does one deal with an employee who constantly plays a game of complying with each successive rule and has a dozen other ways to be difficult? I would appreciate your thoughts on this. Many thanks!

And our always-enlightening FELTG counsel:

Dear Participant-

Yep, you really can tell them what to do. I once worked with a supervisor who required an employee to smile at everyone he spoke to at least once a day, and reprimanded him when he did not. The law is a powerful thing if you understand it. Employees really do have to obey their supervisors.

The trick to multi-jerkiness is progressive discipline. First head hanging after being told not to do it = Reprimand. Closing the door later after being told to keep it open = Suspension. A third offense of anything demonstrates that he does not respond to discipline, and a removal is usually warranted. Or, if you really want to be extra conservative, you could give a second, longer suspension. A fourth offense of anything has always been a removable offense. Always. He’s not going to get to a dozen other ways to be difficult because he’s going to be fired way before then.

Hope this helps. Take care out there-

Sometimes it’s the simplest things that drive us nuts. Grasping the concept that if an individual wants to be paid, he must do what his boss tells him is fundamental to being a federal supervisor. As we often say in our seminars, when a new employee raises her hand and takes the oath to be a civil servant, what she is really saying – by law – that “In exchange for getting paid every two weeks, I will:

  • Do what my government tells me to do,
  • Where my government tells me to do it,
  • When I am told it is to be done.”

If she doesn’t want to do any of these three things, that’s fine. They are always hiring at McDonald’s. Wiley@FELTG.com