An Ugly Trend in Charge-Framing

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By William Wiley, February 15, 2017

In science, we say that if it only happened once, it could be an accident; if it has happened twice, perhaps it’s a coincidence; but if it has happened three times, we’re onto a trend. I’m afraid we’ve come to a point in MSPB mitigation law that in our training programs here at FELTG, we are going to declare a sad trend. Here’s the background.

There have been three major guiding principles in the world of charge-framing that we’ve taught for years, and they have been successful in many removals involving misconduct:

  1. Affirm all charges, get penalty deference – When all of the agency’s charges are sustained, but some of the underlying specifications are not sustained, the agency’s penalty determination is entitled to deference.  Payne v. USPS, 72 MSPR 646 (1996). Agencies love penalty deference. That means that a Board member can look at an agency’s removal penalty, conclude that if she were the deciding official, she would not have fired the guy, but still uphold the removal as within the bounds of reasonableness, thereby deferring to the agency’s decision. Without penalty deference, a Board member is more empowered and likely to select her own “reasonable” penalty.
  2. Affirm a single specification, affirm the charge – Where more than one event or factual specification supports a single charge, proof of one or more, but not all, of the supporting specifications is sufficient to sustain the charge.  Burroughs v. Army, 918 F.2d 170 (Fed. Cir. 1990), Hicks v. Treasury, 62 MSPR 71 (1994).
  3. Determine a penalty even if all charges are not affirmed – When the Board sustains fewer than all of the agency’s charges, the Board may mitigate the agency’s penalty to the maximum reasonable penalty so long as the agency has not indicated in either its final decision or in proceedings before the Board that it desires that a lesser penalty not be imposed on fewer charges.  Lachance v. Devall, 178 F.3d 1246 (Fed. Cir. 1999).

Applying these three principles to the drafting of discipline documents, FELTG (along with others with expertise in this field) has been recommending that agencies:

  • Draft as few charges as possible, thereby reducing the chance that one of them will be not affirmed, thereby losing penalty deference.
  • List a bunch of specifications because you only need one to support the charge. If some are not affirmed on appeal, well, so what.
  • Have the decision letter say something like, “Although I have affirmed all three charges, any one of the charges, standing alone, would warrant your removal.” That Lachance-v-Devall-principle covers you on appeal if a charge or two is not affirmed.

In general, we continue to believe that this approach significantly reduces the agency’s chances of having its removal mitigated to a suspension. Unfortunately, we now must acknowledge that the bottom line is sometimes different from where these principles would otherwise take us. For example, in a decision last year in which the agency brought three charges, lost 10 of the 20 specifications, but managed to have at least one specification affirmed for each charge, the Board still mitigated the removal and put the employee back to work.  Brown v. DHS, SF-0752-14-0816-I-1 (2016)(NP). In a case this year, the agency proved two of three charges with four of eight specifications being affirmed. With a charge lost, we can expect mitigation. However, to his credit, the deciding official said he would have removed the employee even without the failed charge. We should see some Lachance-v-Devall deference because all the charges that matter were affirmed on appeal. Well, that didn’t happen. In spite of the deciding official’s statement, the Board mitigated the removal and returned the employee to duty. Leonard v. DVA, CH-0752-14-0301-I-3 (2017)(NP).

So where does this leave us? I’m afraid it leaves us with the conclusion that the Board members sometimes are going to decide the proper penalty, regardless of precedence dating back to Douglas that says it is the agency’s officials who should be selecting the penalty, not the lawyers at MSPB.

Having worked inside the Board for nearly a decade, I fully understand the temptation to step in and decide that a removal is too severe. It’s a lot easier to have sympathy when you are removed from the front lines where these decisions are being made. It’s hard to sit in your big Presidentially-Appointed Senate-Confirmed office and concede that you’re really not in the best position to determine a penalty. But that’s what Douglas says you’ll do.

As a real-life example of how misplaced it is for the Board to determine a penalty, look to Brown. There, the agency removed the employee from her supervisory position. In mitigation, the Board said she should have been demoted to a lower-graded position instead WITHOUT ANY EVIDENCE WHATSOEVER AS TO WHETHER THE AGENCY HAD NEED FOR A LOWER-GRADED POSITION.

Here’s an option the Board should try in cases like these, where a number of specifications and/or charges start to fall out on appeal. Once the judge reaches a conclusion that removal might not be warranted after considering all the evidence, the judge could remand the case to the agency with an order that says something like this:

The agency has brought three charges in this case. Each charge is supported by three specifications. It is my determination that Charge One fails in its entirety, Specification C of Charge Two fails, and Specification B of Charge Three fails. Based on the remaining affirmed charges and specifications, the agency has seven days from today to reconsider its penalty determination and submit argument in support of its new determination. Once the agency has reached a new penalty determination, the appellant will have seven days to respond. As the record is closed, I will take no further evidence.

There’s a new administration in town. How about we try out something new before we lose our civil service to history? Wiley@FELTG.com

Too Much Adjudication

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By William Wiley, February 7, 2017

As many of you readers know, here at FELTG in addition to providing open-enrollment, webinar and onsite training, we also have a number of agency legal clients to whom we provide advice and representation regarding employee conduct and performance problems. Recently, we were reviewing the judge’s decision in an unacceptable performance removal case which we had helped the agency construct. Claims of discrimination, unreasonably short PIP, hostile work environment based on age … the usual sorts of appellant claims. And of course, the claims all failed and the removal was upheld. Unacceptable performance actions are soooo easy IF you know what you’re doing.

But enough horn tooting.

The judge in this case did something that we see all too often. It seems innocuous, but it is bad for the overall jurisprudence in federal employment law. Part of the appellant’s argument that the removal was wrong was that his supervisor never counseled him prior to the PIP that his performance was unacceptable. As every graduate of our FELTG MSPB Law Week and UnCivil Servant seminars knows, there are four (and only four) requirements for firing a poor performer:

  1. The agency’s appraisal system has been approved by OPM.
  2. The supervisor has informed the employee of the critical elements of acceptable performance.
  3. The employee was PIPed after demonstrating unacceptable performance.
  4. At its conclusion, the supervisor determined that the employee’s performance was Unacceptable in at least one critical element during the PIP.

5 CFR 432.104, Belcher v. Air Force, 82 MSPR 230 (1999), and a million other cases.

Unfortunately, the judge in our case misread the regulation and the case law and added a fifth requirement: that the employee be warned PRIOR TO THE PIP that his performance was unacceptable.  We’ve learned here at FELTG, when we go through the steps to removing a poor performer that some supervisors cannot believe that a supervisor can PIP an employee without prior warning of poor performance. It just doesn’t seem right to them. Some will argue that a “good” supervisor gives constant feedback to an employee so that a PIP implementation will come as no surprise.

Well, isn’t that just delightful. Maybe indeed a “good” supervisor should give constant feedback. Maybe there should be a requirement that employees be warned about bad performance before the initiation of a PIP. But that’s not the law. Congress in 1978 did not say that a warning was necessary; therefore, it is not. Oh, if you want to warn, if you think it’s good supervision to do so, have at it. Or, get yourself elected to Congress and amend the law. Just remember: all a PIP does is say to the employee, “Do your darned job.” Should you really have to warn an employee that he will no longer have a job if he doesn’t do his job? We leave that up to your good management sense to answer that question for yourself.

The problem in this case is that by

  1. Creating a requirement not found in law, and then
  2. Adjudicating whether this “alternative” requirement indeed is present in the case,
  3. An unsophisticated reader might conclude that in the next case, the agency had better satisfy this “alternative” requirement.

Folks. Our adjudicators should adjudicate the law. In this decision, instead of adjudicating the facts of the case, the judge should have said:

The appellant raises the claim that he was not warned of his poor performance prior to initiation of the PIP. As there is no requirement for a pre-PIP warning, I will not consider this claim further.

As Supreme-Court-Nominee Neil Gorsuch recently said, “A judge who likes every outcome he reaches is very likely a bad judge…” Perhaps a pre-PIP warning is a good idea. However, until Congress says it is, it’s not a requirement.  Decisions that mislead by adjudicating issues that are not really issues are bad for our business. Wiley@FELTG.com

What is This Ominous Picture All About?

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By William Wiley, January 31, 2017

No, this is not one of the inaugural crowd photos that was deleted from the National Park Service website. It is a photo of the big celebration on the Mall a couple weeks ago to celebrate the 38th anniversary of the effective date of the Civil Service Reform Act of 1978. Were you there? Well, although no one else was either, we here at FELTG certainly were (hey, somebody’s taking that picture) because we believe in the importance of federal workers and an efficient accountable government workforce. Plus, we never pass up an opportunity to celebrate anything if food and drink are involved. Be sure to mark your calendars for next year so that you, too, can participate in the big celebration.

Of course, next year the celebration may be even smaller than this picture shows we had this year. Why, you ask? Well, if you have been anywhere other than locked in the bowels of the Mount Weather underground emergency operations center, you will have heard by now that the new administration has declared a hiring freeze for large swaths of the federal government – covering some organizations, excluding others – with Congress considering bills to include/exclude their own favorite agencies.

If you’ve been around for previous hiring freezes, you know that they are a lot like other mistakes in judgment that one might exercise. When something especially good happens to you, for many of us it sounds like a good time to celebrate by having an extra glass or three of a favorite adult libation. Of course, the next morning we wake up and realize that tying one on in retrospect probably wasn’t the smartest thing we could have done the night before. Same result with a hiring freeze. It’s easy to declare one and it sounds like a good way to improve government by reducing the payroll, but in reality, the morning-after hangover tells us that there was probably a better way to get to the same result.

We all know how a hiring freeze works. When a person quits his government job, the frozen agency is not allowed to replace the employee one-for-one. Sometimes there’s a ratio of allowed replacements; sometimes none are allowed at all. According to a recent article in the Washington Post, about 10% of the federal workforce leaves government each year, almost all doing so voluntarily. We don’t have statistics regarding where they go next, but it would seem logical that those who do not retire move on to other jobs in the private sector.

Stay with me as we climb this logic tree. For the sake of having easy numbers, let’s say that 10 out of 100 federal employees (10% of the federal workforce) are toxic; e.g., are bad employees who are not earning their pay check. In a non-freeze year, 10 employees would quit, 10 new employees would be hired, and the percentage of bad employees would stay at 10%.

Now, let’s look at a freeze year. I think it’s fair to say that comparing great employees to toxic workers, the good employees are more likely to leave government than are the weak employees. Good employees get better offers; bad employees often know they are lucky to have a well-paying government job. The good leave. The bad stay put. Again, using easy numbers for illustration, if 10 employees leave the fed during a hiring freeze and are not replaced, we go from 10 bad employees out of 100 to 10 out of 90. That means that now 11% of the civil service is composed of bad employees. If we lose another 10 good employees the following freeze year, we now have 10 toxic employees for every 80 good employees, a bad-to-good ratio of 12.5%. And so on, and so on. Use your own numbers, time frames, and ratios if you prefer, but one thing is clear. If you accept the premise that good employees are more likely to leave government than are bad employees, eventually you will have a federal workforce with a higher percentage of non-performing employees than you would without a hiring freeze.

That’s what I call an unwise hangover.

Another aspect of a hiring freeze that will resonate with readers who have attended any of Deb’s dynamite EEO law seminars regarding the accommodation of employees with disabilities. As all FELTG-trained practitioners know, when working with a disabled employee, an agency is first required to try to modify the employee’s current position so that she can perform its essential duties. If that is not possible, the disabled employee has two other entitlements. In priority order, they are:

  1. Placement into a vacant position for which the employee is qualified, at the same grade anywhere one is available within the agency.
  2. Placement into a vacant position for which the employee is qualified and for which the agency is recruiting at a lower grade.

With a hiring freeze, there are no vacant positions available at any grade. Therefore, the only option for the agency when confronted with a disabled employee who cannot perform an essential job function is removal. The two employee entitlements above become meaningless.

There may well be good reasons for a hiring freeze. Even so, there are also bad outcomes that result from a hiring freeze. One would hope that the decision to impose a freeze is reached only after serious consideration of the morning-after. Wiley@FELTG.com

A Message for DHS and Other Suspenseful Agencies

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By William Wiley, January 24, 2017

While reviewing Board decisions that closed out 2016, I ran across a couple of Opinions and Orders over at DHS that were issued on the same day:

  • 45-day suspension: Figueroa v. DHS, NY-0752-14-0203-I-1 (December 22, 2016)(NP)
  • 30-day suspension: Flournoy v. DHS, SF-0752-16-0411-I-1 (December 22, 2016)(NP)

DHS won both appeals with the Board affirming each suspension. Nothing to learn from MSPB’s analysis of the penalty and the evidence supporting charges. So why pay attention to these two actions? Well, for one simple reason:

Why, oh why, did DHS implement these two long suspensions rather than shorter suspensions that would not be within MSPB’s jurisdiction (i.e., 14-day suspensions)?

No agency in its right mind wants to have to defend a disciplinary action before the Board if it does not have to. GAO estimates that an agency defense at MSPB costs the government about $100,000 even if successful; more if the appeal is lost. The agency retains the unilateral right to set the length of a suspension. Why would it ever suspend an employee for more than 14 days and have to defend itself before MSPB when it could just as easily suspend for fewer than 14 days and at worst have to defend itself before an arbitrator, half of whose fee is paid by the union and where the grievant doesn’t have rights to discovery? In addition, if an agency suspends an employee for, say, 45 days, that’s 45 days that it is deprived of the employee’s services, causing coworkers to have to carry an extra load for the duration of the suspension. Given the loss of productivity in a long suspension, the significant resources required to defend in a Board appeal, and the rights that Board appellants have to subpoena documents, conduct depositions of agency managers, and utilize all the other tools of discovery not available in arbitration, why ever do a long suspension?

One could argue that a longer suspension is more likely to correct behavior than a shorter one. Well, one who argues that is doing so without any support in research (facts may not restrain some politicians, but they critical to those among us with a reasoned approach to life). There have never been any studies published in the history of the civil service that support the conclusion that longer suspensions are stronger motivators of correct workplace behavior. So this is not a good reason.

Or, one could argue that the employee “deserves” a longer suspension because of what he did. If he deserves a longer suspension, he probably deserves to be fired. Besides, we don’t discipline to punish for the sake of punishment. We discipline to correct behavior. Ours is not a system based on retribution.

Or, perhaps there’s a concern that the Board will find a removal to be an unreasonable penalty, but a long suspension to be within the bounds of reason. The agency might be trying to avoid a penalty mitigation on appeal by implementing a suspension rather than a removal. Although this rationale has more appeal than the first two, it still fails on analysis:

  1. There is an exceedingly fine line between an act of misconduct that warrants removal and an act of misconduct that warrants a 45-day suspension. Unfortunately, we don’t really know where that line is until at least two of the Board members agree where it should be. Maybe it’s time in the civil service to roll the dice a bit more. Hey, if Congress is going to beat us up for not firing enough people, at least if you have to take a mitigation of a removal to a suspension on appeal to the Board, you can blame MSPB instead of your agency. Who knows; if you do that maybe The Hill will pass some special laws to get your agency out from under those mean old Board members. Avoiding blame is an important part of political life, you might have noticed.
  1. Think strategically like a gambler:
  • If you remove the guy instead of suspending him, if your roll of the Douglas-dice results in the employee staying fired, you have one less bad employee to worry about.
  • If you remove the guy instead of suspending him, if your roll of the Douglas-dice results in the penalty being mitigated to a suspension, you’re out maybe 100 days of back pay and perhaps some attorney fees.

Is the chance of getting rid of a bad employee permanently worth the risk of having to pay out maybe $25,000 to $50,000 if the removal happens to be mitigated on appeal? Thank goodness that’s not a decision that those of who claim to be advisors have to make. In my career, I’ve certainly run into senior managers who would have happily risked that amount to get rid of an unproductive toxic individual.

Whether you work at DHS or some other agency, if you’re still looking for a New Year’s resolution, make it to avoid long suspensions. If the dude doesn’t deserve to be fired, suspend him for no more than 14 days. If he indeed deserves more than a 14-day suspension, fire him. In the long haul, you’ll be the happier for it.

Wiley@FELTG.com

If it’s Good Enough for College Football Players…

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By William Wiley, January 18, 2017

If you watched many of the hundreds of college football bowl games recently, you might have noticed something I’ve not seen before. Apparently, there were at least a couple of senior superstars who chose not to play in their team’s bowl game to protect themselves from potential injury that would have reduced their respective values in the upcoming drafts for the pro teams. In other words, they sacrificed the benefit they would have provided to their team in the bowl for their own personal reasons.

There was banter among the talking head commentators as to whether such a self-centered non-team selfish decision was “good” or “bad,” whatever those relative terms mean in the world of college sports. “What about team spirit?” some said. “If it hadn’t been for his teammates and coaches, they guy might not even be going in the pro draft. He owes them.” Others took a different path. “He’s got to look out for himself. There are millions of dollars at stake, perhaps even an entire pro career. He’d be crazy to put that at risk for the sake of a team he’s about to leave.”

My vote count certainly isn’t scientific, perhaps clouded by a bit of guacamole and light beer, but I think that I counted more commentators opting for the “take care of yourself” approach over the “take care of the team that brought you here” option. It seems those former pro players who announce the college games learned the hard way that taking care of Number One should be a player’s Number One priority. The Spock/Kirk-view that “the needs of the many outweigh the needs of the one” is mainly for science fiction.

Apparently, the now-former Chairman of MSPB shares the opinion of the majority of the sports commentators. As you long-time readers of this here newsletter know, our profession has been concerned about the impending end of the Board Chairman’s appointment. MSPB is a three-membered board. Currently, it has a position that has been vacant for well over a year, leaving just two members. The good news is that even with only two members, MSPB has been able to issue final opinions and orders because it has a quorum. However, with only one member, the Board’s judges can continue to do their work, but MSPB cannot issue final orders without a quorum of Board members.

And as of January 7, we no longer have a quorum at MSPB. Effective that week, Chairman Grundmann cast her last vote as a Board member, then quit. Her term was set to expire on March 1, and most Board watchers expected her to serve to that date, as had her predecessors. However, Ms Grundmann decided to depart before the end of her term, leaving the Board unable to issue any final orders until President Trump’s replacement nominee is confirmed by the Senate.

Though unlikely given the notorious confirmation process, it is conceivable that President Trump could have a replacement Chairman ready to take over soon after March 1. If that were to occur and had Ms Grundmann served out her term, the no-quorum period of no-votes at MSPB might have been short if at all existent. Given the former-Chairman’s early departure, now the civil service is guaranteed a period of several weeks of an inoperative MSPB no matter how quickly the President and Senate work to appoint new members. In 2015, the Board issued about 60 final decisions per week. If it were at the same pace for this year, that would equate to about 300-350 final orders that could have been issued that will not be issued.

I leave it up to you, our wonderful readers, to decide if that’s “good” or “bad.” Here at FELTG, we certainly do not claim to know nearly as much about teamwork as do those guys who announced the bowl games, and we take no position on the former Chairman’s personal decision. If there is a fault here, it is that Congress did not foresee that Board members will be making personal career decisions, and that there should be a statutory mechanism in place to prevent the lights being turned off at MSPB (or FLRA or EEOC or NLRB) headquarters when something like this occurs. Officially, we wish Ms Grundmann the best in the future, wherever that might take her. People are entitled to make personal career decisions and to determine the value of teamwork.

At the same time, we feel sadness for those appellants and agencies represented in those 300 or so appeals who will have to wait extra weeks or months for a final decision in their cases. Football teams have backup players to replace those who choose not to play. As Congress assesses the future of oversight agencies like the Board, hopefully it will give consideration to developing a system to prevent this sort of delay from occurring again. Our country is too important to allow civil service accountability to be delayed when an appointee’s personal career decisions diminish the ability of the team to continue to function. Wiley@FELTG.com

The Good News About the MSPB Chairman Quitting

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By William Wiley, January 18, 2017

Having worked inside of MSPB for nearly a decade, I know how this stuff works. As a Member’s departure gets closer, tough issues with significant impact that have been hanging around undecided get decided. It’s now or never when an adjudicator is about to turn out the lights, much like happens at the US Supreme Court in early summer as the Court’s term for the year draws to an end.

As you may have read about in other parts of this newsletter, MSPB’s Chairman resigned on January 7, leaving the Board without a quorum and unable to operate until the Senate confirms replacements. That means that if there were any contentious issues that had been sitting around, the members had to get them out before that date, or perhaps lose the opportunity to have their voices heard at all.

With that as background, here are decisions that came out the first week of January that, by my guess, were causing some heartburn within MSPB. A couple reverse major precedence in some aspect of federal employment law. Although their impacts are limited to relatively small groups of cases, the effects are significant in those situations, and undo years of precedence contra:

Firing Long-term Temporary Employees:  For many years, individuals employed in a series of temporary appointments accrued MSPB appeal rights even with a few days’ break in service between appointments. That theory was known as a “Continuous Employment Contract.” See Roden v. TVA, 25 MSPR 363 (1984). Well, that’s no longer the rule. From now on, to be entitled to appeal a removal from a temporary appointment, the employee must have more than a year of continuous uninterrupted employment. Winn v. USPS, 2017 MSPB 1.

Settlement Enforcement:  For many years, MSPB would enforce settlement agreements only in cases in which it found that it had jurisdiction over the underlying action on appeal. That principle has now been reversed. The Board will enforce settlement agreements entered into even if it has not established that it has jurisdiction over the underlying matter. Delorme v. DoI, 2017 MSPB 2.

Appellant’s Right to a Hearing:  The Federal Circuit has long held that an appellant is entitled to a hearing, and that the Board may not issue a summary judgment decision without a hearing, even if there are no material issues of fact in dispute. Crispin v. Commerce, 732 F.2d 919 (Fed. Cir. 1984). While the Board’s precedent in this area has not always been consistent or clear, the clarified rule now is that an appellant is not entitled to a hearing when his discrimination claims are deficient as a matter of law. Sabio v. DVA, 2017 MSPB 4.

Sometimes it takes a while for things to happen. I remember a country and western song from my college days that said something like, “All the girls get prettier as closing-time comes around.” Well, the first week of this month was closing-time at the Board. Pretty or not, these are three important decisions that every practitioner needs to know. Wiley@FELTG.com

Deck Chairs on the Titanic

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By William Wiley, January 18, 2017

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

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

Talk about rearranging the deck chairs. Woof.

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

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

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

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

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

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

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

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

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

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

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

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

So, What Do You Do?

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By William Wiley, January 11, 2016

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

I’m an attorney.

I’m a human resources specialist.

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

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

I help supervisors fire bad government employees.

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

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

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

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

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

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

Wiley@FELTG.com

A Use-or-Lose Holiday Gift from MSPB

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By William Wiley, January 3, 2017

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

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

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

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

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

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

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

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

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

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

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

Two Lumps of Coal from the Guys in the Black Robes

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By William Wiley, December 19, 2016

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

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

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

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

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

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

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

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

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