Taking Advantage of the New Notice Leave Opportunity

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By William Wiley, April 12, 2017

We got a number of good questions following our famous FELTG Case Law Update webinar last week. A couple of them were about the new right that agencies have to avoid administrative leave and to place employees on Notice Leave once a removal is proposed. This is a terrific change, one we’ve campaigned for here at FELTG for nearly 20 years, and a flexibility that could save your life.

Seriously, it could save your life.

The new law empowers an agency to place an employee on paid Notice Leave for the duration of the notice period once a removal is proposed. Here are some related questions:

Hello FELTG Team:

Thank you very much for a wonderful training session this morning! I am very interested in the changes that are coming through the Administrative Leave Act of 2016 and have a few questions for you regarding the information presented.

Extension of Notice Period Beyond 30 Days

In the training, you addressed Notice Leave and indicated that the duration could be extend beyond 30 days. When I read the law, I interpreted it to be much more narrowly construed. The law defines notice period as “a period beginning on the date on which an employee is provided notice required under law of a proposed adverse action against the employee and ending on the date on which an agency may take the adverse action.” Generally, the first point at which an agency may take action under 5 CFR Sec. 752 is at the expiration of the 30 day notice period, which would indicate that the notice leave would expire at the 30 day mark. The interpretation seems to hinge on how “may” is defined. Is it defined as the earliest point when the action may legally be taken or is it defined as once the agency is ready to take action? I much prefer your interpretation that the notice period may be extended beyond 30 days and am interested to hear how you arrived at that conclusion.

Initial 10 Days of Investigative Leave

In the training, you spoke about the first 10 days of Investigative Leave. My understanding is that the first 10 days are considered administrative leave under Sec. 6329a(b)(1) and then the subsequent 30 day periods are Investigative Leave; is this in line with your interpretation of the law?

Employee Quits While on Investigative Leave

Do you have any insight into whether an investigation needs to be completed after an employee quits? The law seems to indicate that the employee has appeal rights if there is an eventual adverse finding. I’m unclear whether the investigation needs to be completed after the employee quits to determine whether there would have been an adverse finding or if you can cease efforts to determine if there was misconduct.

Any insights you can provide are much appreciated and thank you again for a great training session.

And, our FELTG response:

Thanks for your questions, oh wise and inquisitive participant. Of course, here at FELTG we do not claim to know the answers any better than you do as we are all working from the same cold language of the law. But here are my thoughts:

Extension of Notice Period Beyond 30 Days:  To me, the term “may take action” is ambiguous enough for me to interpret it to my benefit until I’m told otherwise. For example, although in most situations an agency “may” be able to take an action at the end of the 30-day notice period, in other situations it may not. For example, if the deciding official has conducted an independent investigation into the charges and plans to use the results of that investigation in making a decision, he may not make that decision until the employee has been given at least seven days to respond to the new information. Or, perhaps the CBA says that the employee will be given 45 days to respond instead of the 30-day statutory minimum. Depending on circumstances, then, the notice period might run beyond 30 days, and the DO may not make a decision until a response is made or waived. Separately, if Congress had intended that Notice Leave be only for 30 days because that is the minimum statutory period, it easily could have specifically limited Notice Leave to 30 days instead of leaving it open to the interpretation of “may.” Since it is to my benefit as the agency representative to have the employee on Notice Leave longer than 30 days in some situations, since the employee has no way to challenge the placement on Notice Leave, and since the employee is not procedurally harmed if I am wrong in using Notice Leave beyond 30 days, I interpret the law to allow me to use Notice Leave beyond 30 days until someone bigger than I am tells me to stop.

Initial 10 Days of Investigative Leave: I have no problem with your interpretation. Close enough for FELTG work.

Employee Quits While on Investigative Leave:  Nothing in this law nor any other law of which I’m aware requires an agency to continue an investigation beyond the separation of the employee. I’m not sure whether it came across in the webinar, but I think this whole record-annotation thing is misplaced effort and does little to improve our civil service while costing us the potential expense of a full blown MSPB appeal. The Latin term I am looking for is “stupid.” Therefore, unless a proverbial gun was placed to my head, I would do whatever is necessary to avoid any of this wasted effort, including discontinuing an investigation short of an adverse finding. Goodness knows we all have better things to do to help run the government.

And, another Notice leave related question:

Dear FELTG-Folk-

During the webinar when discussing Notice Leave, Mr. Wiley made a comment that only 2 sentences would need to be added to a proposal notice.  Unfortunately none of us attending the webinar caught what the 2 sentences were.  Would it be possible to get that information?

Our FELTG best-guess response:

It’s always risky interpreting a law before we’ve had any interpretative guidance from the courts, but here’s what I think we need to say in the proposal letter:

“Effective immediately, I am placing you in a paid leave status during the notice period of this proposed removal. I have considered reassigning you to other duties and allowing you to take other leave, but it is my determination that these alternatives would jeopardize legitimate government interests.”

Since the employee cannot directly challenge being placed on Notice Leave, and since there would be no harmful error even if this language is subsequently found not to be correct, I’m standing by these two sentences until I hear differently.

Hope this helps.  Wiley@FELTG.com

From Confusion, Enlightenment

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By William Wiley, April 4, 2017

OK, so I messed up. Last month, some of you might have read an article we distributed that spoke highly of the value of Last Rites agreements, deals that supervisors can cut with employees so that the employee leaves voluntarily rather than getting fired. Unfortunately, when I drafted that piece, I was just coming off a high fever and a near-death medical experience, and my brain wasn’t working too good. Given that even when I’m healthy, my brain doesn’t work too good, I was in bad shape.

The Confusion

Although I intended for the entire article to be about a Last Rites agreement, I inadvertently used the term “Last Chance” agreement once or twice. Please reread the article, mentally substitute “Last Rites” for “Last Chance,” and you’ll get the meaning I was after.

The Enlightenment

A couple of readers who caught the gaffe noted that they could use an explanation of the two different agreements. Had I not made the mistake, I would not have gotten that feedback nor would I have realized a need for greater clarity. So here comes the enlightenment from my confusing article.

Usually, a Last Rites agreement is negotiated at that point that the supervisor has reached the conclusion that the employee needs to no longer be employed in his position. Many times, the supervisor has already collected enough evidence to propose a removal based on either misconduct or unacceptable performance. Here’s how it works in most cases:

  1. The supervisor or someone on her behalf (attorney, human resources specialist, ombudsman … whomever) approaches the employee with the offer. The employee is told that he has a removal facing him soon, and is offered the chance to resign voluntarily rather than be fired. Some employees see a resignation to be an advantage to being fired because the employee’s Official Personnel File will record a voluntary quit rather than a forced removal.
  2. Supervisors see voluntary quits as an advantage to firing the employee because the quit is effective immediately at getting the employee out of the workplace, and the employee has waived appeal/grievance/complaint rights in a well-worded Last Rites agreement (sample in the back of your copy of the FELTG textbook UnCivil Servant).
  3. The employee has the choice between being fired and exercising appeal rights, or quitting and forgoing appeal rights in exchange for a “clean record.” Sometimes agencies will incorporate a little time off or attorney fees as an extra incentive to resign. MSPB has a perfect record at upholding agreements like these as long as the agency does not mislead the employee.

A Last Chance agreement, as its name suggests, is negotiated between management and the employee at the time that a decision has been made to fire the employee. Usually, it happens like this:

  1. The supervisor proposes the employee’s removal based on some specific act of misconduct or unacceptable performance.
  2. The employee responds and defends herself or asks for mercy from the deciding official.
  3. Then, the deciding official or someone on his behalf (attorney, human resources specialist, ombudsman … whomever) approaches the employee with the offer. The employee is told that the decision to remove her has been made, but that the deciding official is willing to hold the implementation of that decision in abeyance for some specific period of time: often one or two years. In exchange for not being fired immediately, the employee agrees to whatever the agency can get: promises to perform acceptably, to refrain from future misconduct, attend anger management training, apologize, etc. In addition, he agrees to waive rights to appeal/grieve/complain anything related to the removal action being held in abeyance.
  4. If during the abeyance period the employee violates the Last Chance agreement, the agency is free to remove him immediately based on the previous misconduct that was the basis for the agreement (not based on the misconduct that is the breach). The advantage to the agency if this happens is that:
    • The employee can appeal, but he has the burden of proving he did not breach the agreement. The agency does not have the burden of proving the charged misconduct nor does it have to prove that the agreement was breached.
    • The Douglas Factors are immaterial. The employee has effectively accepted the reasonableness of a removal penalty by entering into the agreement.
    • The Board loves these things. It hardly ever sets them aside based on fraud, mutual mistake, or bad faith. Although these are traditional bases for finding contracts to be void, we can count on one hand the number of times these agreements have been found by MSPB to be invalid.

In one of my favorite Last Chance Agreement removals, the Board upheld the termination of an employee who was on an LCA when the employee breached the no-misconduct part of the agreement by sending a single email referring to a coworker as a “kiss ass.” If you draft an LCA tight and broad, you can characterize almost any act of future misconduct as a breach, acts that would not have to independently warrant removal.

Don’t forget: If you’re dealing with a collective bargaining unit employee, you need to invite the union to any formal discussions you have when negotiating agreements like these. In my practice, I have found it useful to explain Last Rites and Last Chance agreements to union officials before I ever need to use them. A good union rep will do a little research and see the significant advantage for an employee to have these options to a removal. In fact, I’ve even had union officials do a little arm twisting on their own to try to get the CBU employee to understand the advantages of these sorts of deals.

If you need more details on tactics to use and language to employ in agreements like these, be sure to sign up for our next class in the art of the deal (civil service edition – otherwise known as Settlement Week) October 30-November 3 in Washington, DC. Wiley@FELTG.com

EEO Complaints and Last Rites Agreements

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By William Wiley, March 28, 2017

Oh, boy. Another great issue raised by a regular-reader who’s just trying to do the right thing:

Dear FELTG-

I am an L/ER specialist who provides advice and guidance to managers on disciplinary and adverse actions, including removals.  It seems like we put forth a lot of time and effort into removing federal employees who then file MSPB appeals. Then, management ends up settling for a few thousand dollars and a voluntary resignation with the employee.  There is also a misconception, in my opinion, that employees who are behaving badly cannot be touched if they file a claim of discrimination.  Managers seem to be gun shy once an employee claims discrimination.  There has got to be a better way!

And here’s our FELTG response to this excellent issue:

Dear Loyal Reader,

You have raised an issue that highlights a significant change in the business of federal employment law. In our early days under the Civil Service Reform Act of 1978, a successful practitioner was seen as someone who built a good case, then litigated the devil out of it by representing the agency (or union) in deposition, hearing, and appeal, never giving an inch and fighting to the bitter end to establish not only victory, but righteousness. Some went so far as to bully and threaten their opposite party, all while strictly following procedure, with the ultimate goal of eventually being declared the “winner.”

You would have thought we were trying to get a bill through Congress, or something. 🙂

Today, for the serious practitioner in federal employment law, whether Human Resources professional, union official, or attorney, we have come to figure out that we are all better off, and the country the stronger for it, when we resolve workplace disputes without going through litigation. When you consider the resource expenditure that is necessary to defend a management action through EEOC, MSPB, OSC, FLRA, or in arbitration (into six figures for a successful management defense before MSPB), you must admit that something that achieves the same result but costs you less is a better deal for America.

And as every seasoned attorney and Human Resources professional knows, that magical cheap tool, the one that guarantees success every time without the inherent risk of litigation, is called a “Last Chance Agreement” (LCA). I cut my first one in 1979 and helped set another one last fall. In between, I’ve seen hundreds, either personally or in cases on appeal to MSPB where I was Chief Counsel to the Chairman during the ’90s. Here’s how they work:

Step 1.  The supervisor initiates the removal process. Perhaps it’s placing the employee on a Performance Improvement Plan (PIP). Or, maybe it’s a proposed removal for serious or repeated misconduct. MSPB recently reported that only about one in five removals that are initiated ever work their way to a decision by MSPB on appeal. Over at EEOC, maybe 1 in 50 formal complaints ever sees a judge. That’s because smart agency practitioners have learned the benefit of cutting a deal, with the ultimate deal being a Last Rites Agreement.

Step 2.  The practitioner, acting on behalf of the agency, offers the employee something in exchange for the employee’s promise to leave voluntarily. You see, the reason we initiate PIPs and propose removals is to get bad employees out of the workplace. If we can accomplish that goal without litigation, the citizens and their government are the beneficiaries.

Step 3.  If the employee accepts the offer, or through negotiation develops an offer that is acceptable although different from the original offer, the parties draft and sign an agreement. Those of you with the greatest and most amazing textbook in our field, UnCivil Servant, will find a sample format in the back entitled “Agency Supported Job Search Agreement.” The agency wants to be sure that it gives something to the employee in exchange for the employee agreeing to leave voluntarily without an appeal. That exchange of consideration is how a contract is made. Agencies that do not give anything have a void contract, according to both EEOC and MSPB. A common ironclad consideration in a Last Chance Agreement is for the agency to place the employee on administrative leave for some period of time in exchange for the employee quitting.

And that’s it. Effective immediately, reversible only if the employee was confused (or lied to) about some underlying fact…an enforceable contract with low cost and immediate results. Unfortunately, I’ve run into some attendees in our FELTG seminars who never heard of this wonderful accountability tool. I once had an attorney tell me that administrative leave was not adequate consideration to form a binding contract. Grrrr. Apparently that individual did not pay attention in his Contracts class in law school.

Another time, a Human Resources specialist asked why such an agreement was not a “constructive discharge.” I was forgiving of the questioner as she had been in the business only a few months and had not had the opportunity to read the case law or be trained before she came to our seminar. A similar question from someone who claimed to be experienced in our work would give me serious pause. We’ve had case law since the ’60s (originally from the old Claims Court) that finds that it is perfectly legal to give a federal employee a difficult choice to make among distasteful options. A constructive discharge occurs only when the employee is given incorrect information, or no option but to resign at the time the agreement is signed.

Finally, on occasion I have run into an uninformed inexperienced practitioner who for some reason thinks that the only way to deal with a problem employee is through the standard regulations found in 5 CFR 752 or 432. “We’ve always done it that way. Why break with tradition? The old processes have worked before.” When I hear that, I picture the person wearing hundred-year-old clothing, standing on the street corner, grumbling to anyone who will listen about “those newfangled horseless carriages. What’s wrong with a horse and buggy? I don’t really mind how slow they are, or how expensive they are to care for – and stepping around all that horse poop is not as much of a problem as people say it is.”

Bonus inside scoop: EEOC and MSPB LOVE these sorts of agreements. Legally speaking, they will say in public how these resolutions support mutual dealing with each side realizing the value in giving and taking without litigation. Practically speaking, and perhaps not-so-in-public, the good folks at the oversight agencies realize that a complaint or appeal settled without adjudication is one less hearing they have to hold and at least one less decision they have to produce; in other words, one additional chance for them to get home in time to have dinner with the kids or watch The World Series of Cage Fighting. You will not find a case decision in any oversight forum that holds that the offer of a bona fide last chance agreement – one based on fact and with consideration – has been held to be reprisal.

And, Lordy, I hope I never see an email from an agency attorney or Human Resources professional that recommends that a bona fide Last Rites Agreement NOT be offered out of fear that the EEO-complaining-employee will file a reprisal complaint. Legally, that would be what we agency lawyers like to call “per se retaliation.” Euphemistically, that would be what our colleagues who work the other side of the table, the folks who represent employees, like to call “the smoking gun.”

In my experience, after they call “the smoking gun,” they next call the Tesla dealer and say, “I’ll be ordering the upgrade model with ludicrous speed.”

If you are not utilizing Last Rites Agreements in your practice, you are failing to deploy one of the most versatile, valuable and efficient tools we have in the field of federal employment law. If you do not know enough to appreciate their value, read the case law. Attend our seminars. Talk with others who have used them successfully. Buy the UnCivil Servant textbook that walks you through the process. There is no excuse for not understanding how to avoid the death-march of EEO litigation with this alternative.

Besides, eventually you’re going to get awfully tired of stepping around all those smelly old horse droppings.

Best of luck. Wiley@FELTG.com

When to Give a Probationer Due Process Prior to Termination

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By William Wiley, March 15, 2017

Questions, we get questions. And sometimes it takes us a couple of responses to flesh things out. From an inquisitive (and patient) FELTG-ite:

Dear FELTG Brilliant Minds-

I have a hypothetical question.  If you have a probationary employee with full appeal rights that is not performing at a satisfactory level; the manager does not want to put the employee on performance assistance because s/he is a probationary employee; but the manager wants to remove the employee, what is the charge?  Failure to successfully complete a probationary period?  If so, would the specifications be examples of his/her poor performance? How would you proceed?

And here’s our “brilliant” (though incomplete) first response:

Thanks for your email. With probationers, there is no charge. We just tell them that today is their last day of employment and hand them an SF-50 documenting their removal.

Although this is the minimum legal approach, here are options I’ve used over the years. They are all equally safe from a legal standpoint. The choice really is a personal one depending in large part on your philosophy of life:

  1. Notify him today that he’s being separated at the end of the pay period. Send him home and he gets paid until the end.
  2. Along with the SF-50, give him a memo from the supervisor that says something benign such as “Effective today, I am separating you from employment during your probationary period. You have failed to demonstrate the qualifications and characteristics necessary for an employee of the Environmental Protection Agency.”
  3. Have the supervisor talk with him, perhaps along with an HR specialist and tell him that he has not successfully performed as a probationer and that you intend to separate him at the end of the week. Then, tell him that if he would prefer to resign now, the separation will be reflected as a voluntary resignation rather than as a termination during probation. Some employees see this as a “clean record” resolution although as a practical matter, it might not be as clean as he would like.

Personally, I like No. 3 if the employee is otherwise a good person. I try to use the tone, It’s not you; it’s me: “Hey, this didn’t work out in this particular job. But we sometimes have other jobs open up here at EPA that might be a better fit. I hope you apply for them and are successful in some other type of work, especially if you get a little more education or experience in the field.”

However you do it, here is what I ABSOLUTELY ALWAYS have the supervisor do: draft a memo for the record that describes whatever it is the employee has done that warrants removal: dates, specific failures, witnesses. Stick that in the file (don’t give it to the employee) and use it defensively if/when the employee files an EEO complaint.

And then, our questioner’s response:

That’s just great. Thanks so much. That’s a very good way to terminate a probationer in most situations and I’ll make sure that we implement that approach office-wide. However, did you get the part of my question that says THE EMPLOYEE HAS FULL RIGHTS to the Board? She has completed more than a year of current continuous service without a break from another position within the agency.

Oops, we sort of missed that in our haste to respond promptly. Thank goodness that our reader did not give up on us.

Then, we’re into a notice letter, a response, and a decision. In the notice letter, I would charge the incidents of poor performance that have occurred that cause the supervisor to decide to terminate the individual. Something like this:

By this memo, I am proposing that you be terminated during probation based on the following incidents:

Charge:  Deficient Performance

Specification A:  On February 21, 2017, you painted the walls in your office navy blue. I had told you previously to paint the walls white.

Specification B:  On February 17, 2017, you turned in your work for the week and it contained 18 widgets. On February 13, I had told you that you needed to produce 20 widgets that week.

Specification C:  On February 10, you turned in a Survey Report that had ten misspelled words, three incorrect mathematical calculations, and used 10 point font even though our standard operating procedure for survey reports calls for 12 point font. See attached exhibit A.

And on and on. Then, you’ll need to do a brief Douglas analysis justifying termination, and you’re done at that step.

Seven days to respond, an impartial decision, and they are off the payroll in 31 days. Please note that the law changed in December and you can now place an employee who has received a proposed termination on Notice Leave, thereby getting the employee out of the workplace during the notice period without having to place him on admin leave.

FLRA has had no cases on this, but I’d bet money that they’d find the union has a right to be involved here even though the case law says that they don’t have jurisdiction over a probationary removal. That’s because this whole mess is based on a darned typo in the law that has created this odd-ball category of employees who are technically on probation, but who can appeal to MSPB their removals and are covered by 5 USC Chapter 75.

Best of luck out there. Wiley@FELTG.gov

Employment Lawyers Having Drinks

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By William Wiley, March 15, 2017

They say that one does not want to watch either laws or sausage being made. I might add to that list that’s it’s better not to watch employment lawyers having drinks.

A couple of weeks ago, I was having dinner with two of the best federal employment lawyers I have ever known. After the mandatory two-martini round of drinks (hey, we’re lawyers; they don’t call it a “bar association” for nothing), we found ourselves in an animated discussion that involved raised arms, exaggerated facial features, and loud voices. Clearly, those poor diners seated nearby must have thought us either to be engaged in something highly important or to be just flat out bat-poop crazy. No doubt they were distracted, if not completely put off, from their respective meals by our disruptive discussion.

And what was the topic that got us all fired up? Official Time for the Pursuit of EEO Complaints.

Here was the hypothetical scenario:

  1. As Deryn well described in the previous article, EEOC regulations require that an agency grant employees “a reasonable amount” of duty time to work on their EEO complaints.
  2. What if the employee has performed so poorly in the past that the supervisor has determined that the employee is working at the Unacceptable level, and has initiated a 30-day Performance Improvement Plan? As every experienced practitioner knows, 30-days is routinely accepted by MSPB as an adequate PIP length. At the end of the PIP if the employee has continued his unacceptable performance, the supervisor has no choice but to remove the employee from the position. 5 USC 4302(b)(6).
  3. Then, during the PIP, the employee files several extensive EEO complaints, complaints that would require many hours of on-duty official time to prepare.
  4. Question: Is the agency obligated to grant ANY official time given that the employee is on the cusp of being fired; e.g., can it declare that when applying EEOC’s regulations to the situation it is per se unreasonable to allow EEO-complaint official time for an employee who is on a PIP?

The good-government equities that would lead us to an answer to this hypothetical are balanced:

  • On one hand, we want civil servants to be free of civil rights discrimination in the federal workplace. In pursuit of that honorable objective, it makes sense that the government would allow work time for the employee to seek redress from perceived discriminatory acts.
  • On the other hand, we are taking strong hits from Congress and others charging that in the civil service we do a poor job of holding employees accountable for their performance, that we allow non-productive employees to linger on the roles for months and years beyond the time they should have been fired.

EEOC makes the rules relative to official time. As Deryn described in Virginia K., the Commission will consider the work needs of the agency when deciding how much official time is reasonable; “she was behind on sensitive work.” What we are missing is an EEOC decision as to whether there might be a situation in which zero official time is warranted due to the agency’s need for productivity in a particular situation. One or two of us at dinner concluded that, yes, there are work situations in which no official time need be granted by an agency, and during the pendency of a PIP is one of them. One or two others at dinner that night concluded just the opposite, that there are no situations in which EEOC would conclude that denying any official time was reasonable.

So what do you think? Keep in mind that in the private sector, employers are not obligated to provide work time for individuals to pursue discrimination complaints. They must do it on their own time. Also, keep in mind that there’s a movement afoot to try to run the government more like a private-sector business rather than like a bureaucracy. Perhaps that’s why Congress enacted legislation effective in December that severely limits an agency’s ability to place employees on an administrative leave status, without any exceptions for administrative leave for employees to pursue EEO complaints. And finally, when you look into the future trying to predict what will happen if this issue ever gets to EEOC, be sure to factor in that the decision will be made by individuals appointed by the new White House, not by the one that just left town.

So how did we resolve all of this at dinner? Well, we did what any good group of lawyers would have done: we ordered another round of drinks and moved onto other things to argue about. I wish you had been there with us.

By the way, here at FELTG, we’ve come up with two great alternatives as to what to do when you are confronted with an employee on a PIP who requests official time under EEOC’s regulations. If you’d like to know what those are, you’ll want to come to the next offering of our world-famous seminar Absence and Medical Issues Week, starting March 27 in Washington, DC. Since you couldn’t make it to our dinner, maybe you’ll be able to hook up with us there. Wiley@FELTG.com

We Need a Theory of Discipline in the Civil Service

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By William Wiley, March 7, 2017

A “theory” is a contemplative and rationalized type of thinking, based on observations, deductions, and conclusions. In other words, it’s a reasoned explanation of the way that things happen and is predictive about how they will happen in the future.

That’s exactly what we need in the world of federal employee accountability, and I think we should be embarrassed that we don’t have one already. Probably every reader of this newsletter is involved in some way in holding civil servants accountable for their misconduct. Yet we as a professional group have no official formal theory to guide us on the best approaches to take when disciplining an employee, an analysis of why we bother to discipline at all, and an integration of that contemplative type of thinking into the laws and regulations that limit how discipline will be administered in federal agencies.

And this is a big deal. For example, do we discipline someone to punish him for an act of misconduct, or do we discipline him to correct his behavior? Depending on your theory of discipline, your answers will be different:

  • Punitive: If the goal is to punish the employee, to take “an eye for an eye,” then we select a discipline option in rough value to the harm caused by the misconduct. Back from lunch 10 minutes late, thereby delaying a coworker’s lunch by 10 minutes? You get a reprimand. Do it again in six months, another reprimand (because the harm is the same each time). For each act of discipline, we weigh the harm, then try to find a punishment of about that value to be administered. Our criminal justice system in general selects punishments in this manner. Each act of criminal behavior stands relatively independent of the others that might have occurred previously in a particular criminal’s life.
  • Corrective: If the goal is to correct behavior, when selecting a penalty option, we would consider the harm caused by the current act of misconduct PLUS the history of prior instances of discipline and their success or failure in dissuading the employee from engaging in future misconduct. The workplace theory of progressive discipline is based on this approach. If two employees come back from lunch 30 minutes late, and one of them has previously been disciplined, then that employee might receive a stronger punishment than the employee who we’ve never had to correct before. In comparison, if the goal were to punish and seek retribution, then both would receive the same penalty regardless of previous attempts to correct behavior.

The reason this is so important is that MSPB seems to confuse these two approaches to a general theory of discipline when deciding appropriate penalties. In most cases, the Board appears to adhere to the corrective approach to discipline, and does so when analyzing the Douglas Factor penalty selection factors. If the employee has prior discipline, then the agency’s decision makers are empowered to administer more severe discipline than they would otherwise. But in other cases, the Board will mitigate a removal to a suspension even though the employee has previously been suspended; e.g., Suggs v. DVA, 2010 MSPB 99. The Board has even been known to mitigate a removal to a suspension of shorter duration than one administered previously. If the goal were to correct behavior, if a 10-day suspension did not do it, why on Earth would you think that a 5-day suspension would be a better subsequent action?

In a related manner, the Board recently has moved away from a theory of discipline founded firmly in progressive discipline. The old Civil Service Commission used to teach that the federal service has a three-strike discipline philosophy:

  • First offense: Reprimand
  • Second offense: Suspension
  • Third Offense: Removal

I remember my Commission instructor in 1977 explaining the three-strike approach by saying that a federal agency does not have to continue to employ an individual who does not respond to discipline; e.g., that responding to discipline by correcting one’s behavior is an important characteristic of being a civil servant.

In comparison, MSPB has moved over the past decade toward discounting prior discipline UNLESS the discipline was administered for misconduct similar to the current act of misconduct. Taken to the extreme, this approach would mean that an agency that has 50 charges in its table of penalties would be expected to try to correct the employee’s behavior RELATIVE TO EACH OF THE 50 CHARGES prior to removing him using progressive discipline. The absurdity of this outcome highlights the fallacy of this approach.

And finally, as we’ve whined about in this here newsletter before, some of the Board’s mitigations of removals to lesser punishments make no sense if our discipline theory is to correct behavior, and make perfect sense if our discipline theory is to punish behavior. We’ve seen cases in which MSPB mitigates a removal to a 30, 60, or 90-day suspension WITHOUT ANY CONSIDERATION ABOUT WHETHER A LONGER SUSPENSION IS MORE LIKELY TO CORRECT BEHAVIOR THAN A SHORTER SUSPENSION. In other cases, we’ve seen the Board mitigate removals to a demotion WITHOUT ANY CONSIDERATION ABOUT WHETHER THAT PENALTY WILL CORRECT BEHAVIOR OR EVEN IF THE AGENCY HAS LOWER-LEVEL WORK FOR THE DEMOTED EMPLOYEE TO DO. The mitigation of removals to demotions and long suspensions is based more on the Punitive theory of discipline than the Corrective theory of discipline.

With all due respect, MSPB should not be in the business of deciding the discipline theory for the federal service. Our leadership components should do that: OPM, senior agency managers, the President himself, perhaps. MSPB should apply the law and enforce that theory, but not make it up, certainly not on the fly and as inconsistently as it has been doing recently. A discipline theory should be borne of line management concerns, not legal concerns.

So what would be the components of a good theory of discipline? Well, aren’t you lucky. Here at FELTG, we have more opinions than the new administration has vacancies in senior positions. If you are at a policy level and are considering developing a theory of discipline for your agency or perhaps for the entire federal government (yes, I’m talking to you, new OPM Director, wherever you are), here are some essential elements of a good discipline policy:

  1. Discipline should be corrective, not punitive. If a discipline option does not have the potential to correct behavior, it should not be used.
  2. There are three (and only three) actions that should be used to correct bad behavior: Reprimands, Suspensions, and Removals. No more Letters of Caution, Admonishments, Counselings, Warnings, Expectations, or singing freaking Kumbaya to the employee to try to get her to do what you want her to do. She either does it or she gets disciplined for not doing it (or you choose to do nothing, if you’re that kind of supervisor).
  3. Suspensions should be avoided. There is no evidence that a suspension is an effective negative reinforcement that acts to dissuade future misconduct. In addition, the agency pays a price when it denies itself the services of the employee via a suspension. It either gets by without the contribution the employee would have made on the days of suspension, or it has to punish coworkers by requiring them to do the bad hombre’s work while he is home watching Fox & Friends. Remember, we’re trying to be corrective, not punitive.
  4. There should be three steps in progressive discipline: 1) Reprimand, 2) Final Reprimand, then 3) Removal if acts of misconduct continue to occur. And for the purposes of progressive discipline, it is immaterial that the prior discipline was for a different type of misconduct. We’re trying to get the employee to obey ALL of the agency’s rules, not just one at a time.
  5. If you have need for the employee’s services in a lower-graded position, you can offer that position to him as an alternative to being removed. If he declines the voluntary demotion, he gets removed. If he accepts the voluntary demotion, he waives any rights he might have to challenge the action.

Get organized. Take control. Develop a theory of discipline, put it into your official discipline policy statement, and go out there and hold employees accountable. Leave the singing of Kumbaya to the lovely and talented Joan Baez. Wiley@FELTG.com

Legal Writing Advice from My Spirit Animal

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By William Wiley, March 1, 2017

When we teach our FELTG legal writing seminars, we sometimes we get a little pushback from attendees who disagree with our “philosophy.” I can understand that. Many of our seminar attendees are very smart people, some educated in the finest law schools in our country. They learned how to write many years ago. They’ve been writing with a comfortable degree of success since then. Why should they change their approach just because some FELTG instructor says that there’s a better way?

Well, maybe it would help to know that our “philosophy” is shared by some gosh-darned important people, people who are typical consumers of legal writing.  I was cleaning out some old files over the weekend and ran across an old legal writing article from a law journal. One of the contributors to the article was a US Court of Appeals judge who just happens to make exactly the same points we do at FELTG when we teach legal writing. Great minds, same paths … it always refreshing to know that really smart people reach the same conclusion that you do.

Here are some pointers from the 30-year old article, pointers that will serve as refreshers for those readers who have attended any of the FELTG Legal Writing seminars:

  • A judge’s eye fatigue and irritability set in well before page 30 of a brief. Keep your writing short and focused and avoid unnecessary language.
  • The law is dynamic and can even be exciting. There is no reason that a legal brief should be dull. Strive for good literature as well as attention-grabbing focus. Make the judge sit up and say, “Hey, this is well-written. Maybe this lawyer actually has something worth my time to read.”
  • Do not use footnotes. Thank goodness these things have in large part moved out of our business. The only exception is the footnoting to case law precedence and other legal authority that FLRA uses for the style of its opinions (a practice MSPB would do well to adopt). If it’s worth saying at all, it’s worth saying in the body of the document.
  • State issues clearly and simply. As noted in the article, “A judge simply does not have the time to ferret out one bright idea buried in too long a sentence.” As we teach in our seminars, if you have written a sentence longer than 30 substantive words, you probably have written too much.
  • A bad brief will make every conceivable argument and even some that are not conceivable. Focus. Focus. Focus. If you have more than three issues in an appellate brief, you probably have too many issues. Arguments gain no increased credibility simply because they are repeated using different words.
  • Write for the 12th grade reader. It makes you be focused, knowledgeable about the issues, and the judge will send you a Valentine’s Day card in gratitude. Seriously. 12th If a judge has to consult a dictionary to understand your writings, you have failed.
  • Your case should be stated simply in the opening paragraph. Do not start out with a list of facts and details until you have provided a framework on which to hang them. A good opening sentence to a first paragraph will start with something like, “We are bringing this appeal because …”
  • Our judge-author also cringes whenever she hears or reads words such as “clearly,” “plainly,” or “obviously.” Every time a judge sees these words, she suspects that the issue is not really clear, plain, or obvious.
  • Citations that are weak or do not support the proposition being put forward are deadly. A judge will doubt everything else you have to say if your citation mischaracterizes a precedent or a factual finding.
  • Don’t be afraid to make a concession if the facts call for it. Judges find such honesty refreshing and will give greater weight to the rest of your argument.
  • Although emotional arguments to a jury might carry the day, you should avoid emotional arguments to a judge, e.g., “This poor innocent supervisor did not reprise against the self-centered, selfish, egotistical whistleblower. He was just doing his job; a job he was hired to do by the American people, to make our country great again.” Judges are swayed by logic, not emotion.

If you’re interested in the full article, you can find it in the September 1988 edition of the ABA Journal. I’m sure you have it lying around your office somewhere. And if you’re interested in the circuit court judge who contributed her suggestions to the article, she’s moved on to another job, a job in which some say she is receiving the best medical care available in America today: Justice Ruth Bader Ginsburg. Wiley@FELTG.com.

Taking a Leak

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By William Wiley, February 21, 2017

Here’s a recent hypothetical phone call between one of our top notch FELTG reporters and a senior career employee at a big federal agency.

FELTG:  So, how’s it going, Buddy?

Civil Servant: It stinks. My new political employee boss is a stupid, incompetent, smelly jerk. He’s improperly funneling a lot of huge federal contracts to his family members. And, he just told me that his brother has been hired as a spy at CIA. How you doing?

It’s getting to where every federal employee probably needs an employment lawyer on speed dial, and to use that phone number before he says anything to anybody. Here’s how this somewhat innocuous statement looks in consideration of federal employment law.

  1. “My new political employee boss is a stupid, incompetent, smelly jerk.” This statement constitutes actionable misconduct. Yes, our civil servant may have a Constitutional right to freedom of speech in general, but a senior agency official saying something like this to a reporter constitutes the charge of Disrespectful Conduct and warrants at a minimum a Reprimand. Federal employees are free to have these thoughts, but not free to express them to a reporter while sitting in a high-level federal position.
  2. “He’s improperly funneling a lot of federal contracts to his family members.” This statement is protected and may not be the basis for discipline. By definition, it constitutes “whistleblowing,” 5 USC 2302(b)(8). An agency may not discipline (e.g., reprise against) a federal employee who discloses violations of law, as this would.
  3. “And, he just told me that his brother has been hired as a spy at CIA.” This disclosure violates a law that prohibits the release of secret information. Therefore, it is not whistleblowing and warrants not just discipline, but also criminal prosecution.

One of the problems we have as a society is that a number of people who talk about federal employees who disclose information have not had the advantage of the legal training provided by the Federal Employment Law Training Group. They give speeches, interviews on television, and hold press conferences in which they lambaste employees who leak information about the internal goings-on in a federal agency. A number of those senior officials have initiated investigations into the leaks with the intent of firing the leak-ees.

Well, here’s the deal, Lucille. There are two kinds of leaks: those that align with the second statement above and those that align with the third. If a federal manager finds out that one of her underlings leaked information to a reporter that discloses a violation of law, gross mismanagement, gross waste of funds, a danger to public safety or health, or an abuse of authority, that employee is ABSOLUTELY PROTECTED by law from discipline, reassignment, a significant change in duties, or any other personnel action that would constitute whistleblower reprisal. However, if the disclosure itself as in the third statement above violates a law against making such disclosures (e.g. the disclosing of secret information), then the employee ABSOLUTELY can be disciplined, fired, and even charged with criminal misconduct.

So when you hear that someone is going after “leakers,” keep in mind that there are good leakers and there are bad leakers, according to the law. Good leakers are whistleblowers who cannot be disciplined, and bad leakers are civil servants who disclose information prohibited from disclosure by law and who can be fired.

Unfortunately, as we wrote about earlier this month, if you leak, you may not know which of the two categories you fall into until after you’ve mortgaged the house to defend yourself in a removal action. Please be careful out there. Wiley@FELTG.com

When You Can Say “No!” to the President

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By William Wiley, February 15, 2017

Recently, the Washington Post asked civil servant readers when they would be willing to refuse to comply with policy directives coming out of our new Administration. Hopefully, you FELTG-ers know that the answer to this question is more legal than philosophical.

The basic rule in government is that an employee must do what his supervisor tells him to do. As President Trump is the chief executive of the executive branch, if you are a federal government employee, he is in your supervisory chain of command. Therefore, if he directly or through one of his Trumpette underlings tells you to do something (5 USC 301), you are obligated to do it or open to being found to be insubordinate.

However, like many rules in life, there are exceptions. These excuses for not obeying a supervisory order have developed over the years through MSPB case law:

  1. Unsafe. A number of federal employees perform work every day that a lay person might find to be unsafe; e.g., defusing some of those spent munitions that can be found at various military bases around the country. However, a civil servant is not guilty of insubordination if she refuses to obey an order that would put her in an unreasonably unsafe situation, given the nature of her job.
  2. Illegal. An employee does not have to obey an order that is illegal in itself. For example, if an employee is ordered to forego a Constitutional right (e.g., the Constitutional right to privacy surfaced in one or two cases), he can refuse it. Or, to undergo a psychiatric exam or to produce medical documentation that is not authorized by law.
  3. Requires an Illegal Response. In this case, closely related to the former, even if the order itself is not illegal, a federal employee does not have to obey a policy directive that would require her to violate a law to comply with the order. For example, a law enforcement officer could refuse to obey an order that requires her to treat members of one race more harshly than members of another race.

Although these exceptions are relatively well-established in case law, here’s the challenge:

If you are ordered to implement a supervisory order that you believe falls into one of these three categories and you choose to disobey that order, you are betting your job that you are correct.

Let’s say, hypothetically speaking, of course, that you as a federal employee are directed to detain members of a certain group of individuals who are attempting to enter the United States. If you believe that order would require you to violate the Constitutional rights of those individuals, you cannot be required to obey that order as you would be violating a law if you were to do so. Unfortunately, the only way you can establish that you do not have to obey that order is to disobey it, get fired for insubordination, and then on appeal, convince some judge that you were correct as to the un-Constitutional nature of the order. If you are found to be correct, you get back pay and your job back. If you are mistaken, if the order did not violate the Constitution, you stay fired.

This is a tremendously difficult situation. Few of us, this writer included, are qualified to finesse the fine points of Constitutional law out of a situation in real time with the boss yelling, “The President said do it; do it!” Few can stand the prospect of no income for several months while the subsequent removal case gets passed on judicially.

But there really is no alternative. If we were to grant federal employees the right to refuse to obey orders simply because they “believed” them to be illegal, then chaos would rein. Civil servants across America could find the most straightforward orders to be illegal, then keep their jobs even if eventually the orders were found to be perfectly legal.

“Bill, lunch is 30 minutes.”

“Sorry, boss. That’s unsafe as I need at least two hours to digest my meal. Plus, I think I read about some kind of law several years ago that says I get two paid hours for lunch because I am over 40 years old. Or, something like that.”

Bottom Line: if you are a career civil servant (not a political appointee as was the recently-former Acting Attorney General) and you choose to refuse to obey a new policy directive, be aware of the potential risks and consequences. Being right in the eyes of your god doesn’t necessarily put food on the table. Wiley@FELTG.com

So, the Union Wants a Bunch of Information?

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By William Wiley, February 15, 2017

Questions, we get questions. Not a lot of questions are about union rights and corresponding management obligations, and this one is a good one:

From an inquiring mind among the FELTG newsletter readership:

Dear FELTG brilliant people. Here’s an LR Hypothetical for you:

The union makes an information request for certain emails from a recent former employee. The union says that it needs the emails because it needs to find out whether to file a grievance about the former employee putting a current bargaining unit employee in a reprisal environment.  The emails allegedly contain derogatory opinions expressed by the former employee, about the current employee, to the current employee’s clients.  Management says it was aware of the emails, and that it would release the emails if it still had them. However, the only component of the agency with access to the emails is the Information Technology staff, and the attorneys advising IT act like the emails are super-secret. Before IT will give management access to the emails so that management can respond to the union, the IT staff and its advisors want the union to demonstrate a “particularized need” for the information. How would you rule about the establishment of a particularized need?

Thanks, FELTG!

And now our FELTG fantastic response:

Dear Desperate Reader:

Thanks for your hypothetical question. As usual, we start with the law:

5 USC Section 7114:

(b)       The duty of an agency and a union to negotiate in good faith under subsection (a) of this section shall include the obligation —

…

(4)       in the case of an agency, to furnish to the union involved, or its authorized representative, upon request and, to the extent not prohibited by law, data –

  • Which is normally maintained by the agency in the regular course of business. It is management’s burden to establish that the material is not normally maintained or that its production would be unreasonably burdensome.

If you don’t have access to the emails, the information is not “normally maintained.” Therefore, you don’t have to provide it. See Navy and AFGE, 26 FLRA 324 (1987) (If the data or information does not exist, it need not be produced, but management should inform the union of that fact).

However, if the data exists anywhere within the agency (e.g., the bowels of IT), then you must cough it up if there is a particularized need. A union demonstrates a particularized need, in general, if it tells the agency:

  • Why it wants the information, and
  • What it intends to do with the information.

And the information is “within the scope of collective bargaining”:

  • Contract administration
  • Grievance and ULP processing
  • Employee representation

FAA, 55 FLRA 254 (1999)

The union must justify a request as to:

  • Geography
  • Time frame (e.g., “for the past 4 years”)

U.S. Customs, New Orleans, 53 FLRA 789 (1997)

In your case, the union has said that it wants the emails to consider whether to file a grievance relative to a particular employee whose rights might have been violated in a particular way. Can’t get much more particular than that.

If you don’t produce the emails, I’d say you have yourself a nice little ULP. But what do we know? If you deny the union’s request and they file a ULP, by the time it works its way through the system, Congress may have outlawed unions in federal agencies anyway.

Hope this helps. Take care- Wiley@FELTG.com