Changing the Law Won’t Help

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By William Wiley

Dear Mr./Ms New President,

Sometimes I don’t know whether to scream or cry.

Last week was the 38th anniversary of the passage of the Civil Service Reform Act of 1978. In 1984, MPSB held that under the “new” Civil Service Reform Act, although it could mitigate unreasonable removals for misconduct taken under 5 USC Chapter 75, it had no similar authority to mitigate removals for unacceptable performance taken under 5 USC Chapter 43. Thus, one of the great gifts of the Reform Act came into existence: the ability to fire an unacceptable performer who failed a PIP (performance improvement plan) without having to defend not taking some lesser action, such as a demotion or reassignment. From the earliest days, we learned that we had to include a Douglas Factor analysis if we fired someone for misconduct, but not if we fired him for failing a PIP. Lisiecki v. Federal Home Loan Bank Board, 23 MSPR 633 (1984).

Some 30 years later, DVA fired a guy for failing a PIP, entitled the removal “Unsuccessful Performance,” and referenced 5 USC Chapter 43. However, it included in its appeal submissions a Douglas Factor analysis, which the Deciding Official referred to in justifying not taking a lesser action. MSPB reasoned that since the agency included a Douglas Factor analysis, it must REALLY have been taking a misconduct removal under 5 USC Chapter 75 regardless of its claims otherwise, required it to justify its penalty and applied the higher preponderance of evidence standard required in misconduct removals (rather than the lower “substantial evidence” burden of proof called for in performance actions).

In 1217, King John signed the second Magna Carta, thereby establishing for the first time in countries that base their laws on those of England (as we do here in the Colonies), that the government will treat its citizens fairly before taking away their property. In a subsequent Magna Carta in 1354, English law even came up with a name for this new requirement for fairness: due process. We brought due process into our country when our fore-parents drafted the Constitution. The Federal Circuit applied it in the world of federal employment law 30 years ago when it said that Deciding Officials violate due process if they rely on information unknown to the employee when deciding to fire the guy. Sullivan v. Navy, 720 F.2d 1266 (Fed. Cir. 1983).

Some 800 years later, in 2013, a DVA Deciding Official (DO) listened to recordings of inappropriate customer phone calls involving the proposed-removal-employee. The DO then relied on those calls when deciding to fire the employee for taking too long on those calls. This little due process violation is what we in the business call a “two-fer”. Not only did the DO violate Sullivan by relying on secret information, she also upheld a charge other than the one that was brought; e.g., Inappropriate Calls vs. Too-Long Calls. Walls v. DVA, DE-0752-13-0278-I-1 (September 7, 2016)(NP)

Our friends at DVA have been in the media a lot the past year or two, for several reasons:

  • A whistleblower revealed what has been described as a wide-spread practice of juggling the appointment books so that it appeared that DVA was providing prompt medical care to our vets when in fact a number of them were waiting months and years for an appointment.
  • Congress brought pressure on DVA top leadership to punish those managers responsible for gaming the appointment system and thereby harming our vets.
  • In response, political appointees at DVA stated that it was hard to discipline bad federal employees because of the onerous civil service protections. In support of this claim, it pointed to two or three instances in which DVA had indeed disciplined senior managers, only to have those actions set aside on appeal by the mean old Merit Systems Protection Board.
  • In response to that response, Congress changed the law to reduce the period of time an SES employee at DVA has to defend himself before he can be fired (from 30 days to 7), and foreclosed review of the judge’s decision by the three politically-appointed members of the Board at MSPB. As of this writing, similar legislation has been proposed (or maybe even enacted; I lose track with end-of-year continuing resolutions) to extend these reduced protections to most all DVA employees.

Oh, the misplaced effort. If Walls is an example of why agencies are losing cases before MSPB (and it is), the fault lies not in the law, the fault lies in the lack of knowledge of the laws that control the procedures we use in the federal workplace. Congress can reduce the darned notice period down to 15 minutes, and DVA is still going to lose cases if it hasn’t learned to apply legal principles that have been around since the Middle Ages (when we burned witches at the stake, all educated people communicated in Latin, and the top leadership positions for women in society were as either an abbess or a queen regnant).

There simply is no excuse for the procedural errors that were made in this case. FELTG phones are open every workday of the year. Our online registration is available 24/7. We work our trainers so hard that they beg for mercy (and an increased per diem allowance to cover their sizeable bar bills). If you are in a leadership position within your agency, and you’re tired of losing cases on appeal, go look in the mirror. The odds are awfully good that the problem is not in the civil service protections in law. If your lawyers and human resources professionals do not know how to handle these cases, the problem is in you.

With all due respect. Wiley@FELTG.com

Making Yourself FELTG-Smart

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By William Wiley

Sometimes in one of our seminars, after we present an especially scintillating nugget of employment law advice, a participant will break down in tears saying something like this:

“How do you guys do it? You always seem to know what to do in most any employment law situation. Do you commune nightly with God? Do the Board, Commission, and Authority members vet their decisions through you for correction? Do your instructors have permanent cyberFEDS© connections blue-toothed into their cerebral cortexes?”

Yes, yes, yes … we do at times appear to be magical and unusually wired. And although our secret connections have to remain secret, we can share with you a trick that will help move you along the road toward FELTG Nirvana, gathering employment law wisdom as you progress, making you nearly as smart as our FELTG instructors (although, of course, never quite reaching that level of expertise).

Prepare to be enlightened, because the trick is:

  1. Read the case decisions.
  2. Draw practice conclusions.

Here’s how it works. Consider, if you will, the following analysis from a relatively routine MSPB opinion:

The evidence considered by the administrative judge consisted entirely of out-of-court witness statements, and she evaluated the probative value of that hearsay evidence, including but not limited to the deciding official’s sworn affidavit refuting the appellant’s claims, based on the factors set forth in Borninkhof v. Department of Justice, 5 M.S.P.R. 77, 87 (1981). Under Borninkhof, the following factors affect the weight to be accorded hearsay evidence: (1) the availability of persons with firsthand knowledge to testify at the hearing; (2) whether the statements of the out-of-court declarants were signed or in affidavit form, and whether anyone witnessed the signing; (3) the agency’s explanation for failing to obtain signed or sworn statements; (4) whether declarants were disinterested witnesses to the events, and whether the statements were routinely made; (5) consistency of declarants’ accounts with other information in the case, internal consistency, and their consistency with each other; (6) whether corroboration for statements otherwise can be found in the agency record; (7) the absence of contradictory evidence; and (8) the credibility of declarant when she made the statement attributed to her.

The administrative judge found that the appellant withdrew her hearing request; accordingly, the witnesses could not provide hearing testimony. The administrative judge also found that all except one of the witnesses’ statements were signed and made under the penalty of perjury. The administrative judge found that the appellant and the deciding official were not disinterested witnesses and that their statements were contradictory. The administrative judge found that the appellant failed to prove her claim of race discrimination because it was based entirely on double hearsay, which lacked sufficient reliability to have real probative value, and that she submitted only “sparse ” evidence showing that her removal was motivated by her race or by her association with a race. The administrative judge also found it significant that the appellant failed to submit corroborating evidence consisting of statements from disinterested witnesses substantiating the alleged race discrimination or contemporaneous evidence in diary or journal entries reflecting the alleged discriminatory comments.

When reading this decision, you could scan through this language, appreciating that it’s foundational, then skip ahead to find out what happened to the appellant in the case. Or, if you were trying to become FELTG-smart, you could stop a second and consider whether there might be hints in here that you should use to tweak the way you do this business in practice, e.g.:

When relying on hearsay evidence in an appeal (as we all have to do on occasion), be sure to argue any of the following that are true statements:

  1. There was no one available who had first-hand knowledge of this evidence.
  2. The out-of-court written statements were made in affidavit form and co-signed by a witness.
  3. You could not get sworn statements for a very good reason (being stupid or not reading the FELTG newsletter are not very good reasons).
  4. The people making the statements are disinterested parties to the appeal.
  5. The statements are consistent with other evidence in the record.
  6. The statements can be corroborated by other evidence in the record; e.g., the individual who made the hearsay statement was keeping a contemporaneous log of events (tell your clients to keep contemporaneous notes as a case develops).
  7. There is no unbiased contradictory evidence in the record.
  8. The Hillen credibility factors support a conclusion that the person giving the statement is more likely than not telling the truth.
  9. Double hearsay (e.g., Bill’s out-of-court statement says that he heard Deb say that Ernie punched Peter, if offered to prove that Ernie indeed punched Peter) isn’t worth a bucket of warm spit.
  10. The other side’s evidence is “sparse,” a lovely subjective word that can be stretched to cover what might otherwise be characterized by the other side as “significant,” and done so with a litigator’s straight face.

There you have it. A trick to help you learn how to build a case for your side of the hearing room by applying practical lessons to implement a foundational principle in federal employment law. Now all you have to do is read all the other opinions issued by an oversight agency and draw similar practice conclusions. Or, alternatively, you can sign up for one of our fantastic FELTG seminars and learn from those of us who have gone before and have already done the leg work for you. Wiley@FELTG.com

A Love/Hate MSPB Decision

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By William Wiley

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

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

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

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

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

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

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

There were a number of other issues in this case:

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

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

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

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

Heading: [As usual]

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

Charges (abbreviated):

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

Issues:

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

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

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

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

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

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

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

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

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

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

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

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

  • Claim – The penalty of removal is unreasonable.

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

Decision: I AFFIRM the removal action.

[Standard petition for review rights.]

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

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

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

Learning from Our Mistakes

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By William Wiley

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

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

Action on appeal: Removal, GS-12 Biologist

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

Board’s decision: Affirm the judge’s mitigation

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

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

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

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

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

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

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

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

Summary:

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

Penalty factors warranting mitigation:

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

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

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

Fun Facts:

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

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

 

 

Legalized Lying

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By William Wiley

Consider this scenario:

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

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

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

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

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

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

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

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

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

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

Yes, But Who?

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By William Wiley

Here’s another article in our series of advisories to the new incoming President. Hey, you may know a lot about building golf courses or flying around the globe acting all “Stately,” but here at FELTG, we bet you don’t know diddly about federal employment law. Fortunately, we do, so here’s another recommendation for you.

Dear New President:

Ask “who.”

Now that you’re in charge of the Executive Branch, about once a month or so you’re going to read some article about gross malfeasance in the way that one of your federal agencies is being run. The media loves to make us civil servants look bad, and goodness knows those fellows on the other side of the aisle on Capitol Hill absolutely revel in the thought of dragging one of your secretaries before an oversight committee where she can be asked brilliant questions such as [implementing Southern drawl], “Madam Sek-e-tary, are you saying – for the record – that you fully support government waste, fraud, and abuse at the highest levels of your administration? My goodness, how do you stand to look at your sweet self in the mirror? Bless your little heart.”

Case in point: September 1, 2016, Washington Post, A-2: Patent examiners – Nearly 300,000 hours found to be fraudulently billed amid case backlog. The article discusses a recent Inspector General (IG) report which found that for part of 2014 and all of 2015, U.S. Patent and Trademark Office (PTO) employees cheated the government out of $18.3 million in salary (and possibly up to $36 million) by claiming time worked which was not. The report points to an abuse of flexiplace/flextime policies as a source of the lost time, plus employees who “gamed” the system while supposedly reporting to the PTO main office in Alexandria.

Assuming that this report is in general close-to-correct, as President you will be interested in fixing thigs, won’t you. Therefore, you will want to know the cause of this problem so you can address the cause. What follows are a couple of possible causes alluded to in the article (followed by our usual snarky FELTG comments):

  • “There may be other [legitimate] reasons for the lack of a digital footprint.” Yeah, and when I was in college, I subscribed to Playboy to read the in-depth articles. If there were other legitimate reasons for the discrepancies, don’t you think those brilliant, well-trained IG investigators would have noticed them?
  • The union contract has limitations on a supervisor’s ability to hold flexiplace employees accountable. Hey, guess what? Collective bargaining agreements can be changed! Management can make proposals and bargain. If a compromise cannot be reached, four Presidential appointees decide what the CBA will say. When confronted with a management proposal that would increase accountability, supported by a very public IG report that finds there is limited accountability, my money is on those Presidential appointees coming down on the side of efficient government.
  • “Eight years ago, the agency stopped requiring employees to swipe their badges when they leave the headquarters building. This is only required when they go into work.” Then change the darned policy. Sounds like an internal security matter for PTO, and internal security policies do not have to be bargained with the union (although the impact of the policy change does). For employees who are not in the bargaining unit, the policy change can be effective tomorrow. Same answer for allegedly outdated low performance standards. Changes to performance standards also do not have to be bargained.

Somehow poor employee accountability procedures managed to be put in place at PTO. Mister/Madam President, the “who” question is, “Who is responsible for this happening?” There are two potential groups of culprits:

Line Management

  1. It is possible that the leadership at PTO is generous on purpose; that the folks in charge intentionally put into place policies that allow employees to game the system and avoid accountability. Maybe they think that federal employees are underpaid and that by allowing abuse of the pay system, good people will remain employed at PTO rather than go work for some high paying patent law firm. If this is the case, that the slack policies were intentional, then you as El Presidente need to consider who you appoint to these positions and whether this is how you want your appointees to manage.
  2. Alternatively, it is possible that the PTO leadership came to believe that it had no choice but to reduce the oversight of the agency’s employees, that it had to sign a CBA that reduced accountability, that it could not fire employees who abuse leave, that it had to have loose accountability procedures. If this is the case, then somebody on your behalf should be looking into how PTO leadership came to believe these things.
  3. Or, it is possible that the individuals who have been appointed to leadership positions in PTO are just stupid. For a solution if this is the case, see “A.” above.

Staff Advisors

  1. Perhaps the PTO accountability staff advisors (the Office of General Law and Office of Human Resources primarily) have advised line management on good procedures for holding employees accountable, and line management has rejected that sage advice (see A. and C. above). For example, when the PTO union proposed that employees who work at home part-time not be required to log onto their computers and have 24 hours to respond to a phone call or email from their supervisor, maybe the staff advisor to the management bargaining committee gave solid accountability advice: “That’s just plain crazy. We’ll have no way of documenting whether people do their work when they say they did. There’s no way we should agree to that.” If senior management chooses to ignore this recommendation, there’s not much the LR advisor can do, but agree to the proposal and sign the CBA.
  2. Alternatively, maybe it wasn’t line management who made these sorts of decisions. Perhaps the staff advisors were the “who” that made these calls, that implemented low production standards based on how work was being done in the pre-computer days of 1976 (don’t get upset with us; we’re just reading from the Post article) and did not recommend charging people AWOL and reprimanding or firing employees who cheat. If this is the case, did the staff advisors act this way because they are evil intentional wasters of tax payer dollars, or are they just ignorant?

Here at FELTG, many times all we know is what we read in the newspapers. And that is all we know about this situation. The bottom line given the facts as reported by the IG are these. When it comes to who is responsible, it is either:

  1. Ignorance, or
  2. Evilness.

Madam/Mister President, we have to leave the evilness up to your ability to select good appointees. As for the ignorance, we aren’t a training company for nothing. You want your people to learn how to bargain a contract with your union? We teach that. Discipline employees who lie about their use of government time? We can show you how to fire them quickly and fairly until the cows come home. Manage absence and leave? We present an entire week of training on that singular topic twice a year, at a cost to the government of much less than $18,300,000.

And finally, here at FELTG, we are absolutely bewildered by the following little tidbit from the article:

“Investigators did not recommend that patent officials pursue administrative or criminal action against any individual examiner because the inspector general is prohibited under federal privacy laws from disclosing their names.”

You’re telling us that we have created an entity in government to investigate criminal activity and employee misconduct, but that agency cannot release the names of employees for the purpose of criminal prosecution or discipline for misconduct? Oh, Mx President, the problem is even worse than we thought. Wiley@FELTG.com

Time for FELTG to Start Advising our New President

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By William Wiley

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

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

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

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

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

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

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

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

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

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

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

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

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

You Don’t Know Discipline

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By William Wiley

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

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

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

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

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

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

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

  1. Reprimand
  2. Suspension
  3. Demotion/Removal

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

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

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

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

There are none.

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

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

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

Here are two Letters of Admonishment:

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

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

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

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

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

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

wiley@feltg.com

 

What Should be Done About This Rating?

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By William Wiley

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

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

** = Dissatisfied

*    = Very Dissatisfied

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

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

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

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

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

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

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

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

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

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

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

A FELTG Offer You Should Consider Seriously

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By William Wiley

Our FELTG team of instructors presents seminars throughout government, interfacing with many agencies each year. One of the things we’ve come to notice is that agencies often tell us that they add layers of extra steps to labor/employee relations processes beyond what is required by law. Although the statutory minimum process required to fire a bad civil servant for misconduct involves a single supervisor and 30 days of pay, a large number of agencies greatly exceed these minimums; e.g.:

  • According to MSPB reports, 80% of agencies take more than 45 days to remove a bad employee.
  • Most agencies use at least two levels of supervision to terminate a misconduct-ing employee.
  • Some agencies use a multi-member board to propose or decide a tentative removal, plus all the layers of unofficial review that go on before the matter ever gets to the Board.
  • Lawyers are brought into the procedures at various levels and given the authority to block the tentative removal (denial authority is rarely official, but exercised anyway).
  • According to MSPB surveys, 97% (ninety-seven frigging percent!) of front-line supervisors mistakenly believe that it takes more proof to fire someone than the law has required for nearly 40 years.

Our civil service is routinely (and justifiably) criticized for our inability to promptly deal with misbehaving employees, both by Congress, and also by the hard-working employees who see that bad employees do not get fired and receive the same salary and benefits as they do. Yet rather than deal with these nasty realities, agencies continue to come up with convoluted, unnecessary, and inefficient ways to hold bad employees accountable for bad conduct.

Fortunately, we here at FELTG have come up with a challenge for you readers that just might fix this dismal situation. To see if you’re eligible to accept our challenge, consider the FELTG philosophy regarding civil service accountability:

  1. Managers – not lawyers nor human resources specialists – should make decisions regarding employee discipline. Most all formal agency policies, instituted by agency heads, say that line managers make discipline decisions based on the advice and counsel of HR and legal. However, the reality is far from this, in our experience. Routinely in our supervisor training classes, participants say things like, “That’s great, but HR won’t let us do that.” Or, “My draft proposal has been sitting in legal for six months waiting on them to approve the removal.” Well, that’s just terrible. It is a rare HR specialist or reviewing attorney who has been trained in how to manage an organization. We may know the law, but we have little actual real experience being held accountable for the functioning of an organization. Although we can advise, it is the front-line manager who most fully appreciates the harm caused by the non-performing employee and who has to suffer the loss of productivity and unnecessary salary expenditures that result from delayed removal actions. Therefore, the line manager should be making those decisions, not us.
  1. Supervisors should be trained, then held accountable for how well they discipline. Instead, what we’ve found is that upper management and staff advisors often think that because of their respective exalted positions, they are in the better position to make discipline decisions, that the front line supervisor should not be allowed to act because, darn it, they just aren’t as smart as we are.

You aren’t going to like this, but here’s the deal. If you have front line supervisors who do not know how to administer discipline, then it is YOUR FREAKING FAULT. You either hired the wrong person, failed to train that person, or declined to hold that person accountable when he did not properly discipline his workforce. We all learned this in the 80s when we were studying Japanese total quality management styles. Instead of checking production at each step of a process, you train individuals to do their job properly in the first place, then hold them accountable at the end of the process for quality and efficiency. By doing away with all those intermediate check points, things can get done much faster.

  1. The statutory legal minimums are fair to the employee. Yet we see agencies provide much more than is required when it comes to holding employees accountable, for reasons we cannot fathom. For example,
  • Before initiating a Performance Improvement Plan to assist a poor performer to improve, some agency policies mandate that the supervisor should place the employee into a pre-PIP mini-PIP, and then formally PIP her only after she fails the pre-period. Why? If the employee has already demonstrated unacceptable performance, why add the additional time to the improvement process? You sure don’t see the private sector doing something like this. Agencies were created to provide government services, not government employment.
  • If an employee presents a medical certificate from his physician that concludes he cannot do his job, if the employee cannot be accommodated, then the direct approach is to remove the employee based on a charge of Medical Inability to Perform. The employee’s medical certificate is preponderant proof that the removal is warranted. Yet, at least one large agency we know will instead delay the process and incur additional costs by sending the employee for a Fitness for Duty medical examination. Again, why? The employee’s doctor says he can’t do the job. You’re not helping the employee when he applies for disability retirement by sending him to a FFD (the fact of the medical inability removal does that by itself). Using the employee’s own self-generated medical documentation is just about the best medical evidence you can have on appeal.
  • Once a removal is proposed, the employee cannot be removed for 30 days. During this time, she has the right to defend herself by responding to the proposal. The minimum response period is seven days, but there’s no real problem if the agency extends the response period to 10 or 20 days, to accommodate the needs of the employee. Yet, way too many agencies cavalierly extend the response period beyond 30 days, many times to 60 days or more, at the request of the employee or his representative. “I’m a very busy and important employee-representing lawyer. I don’t have time in my tight schedule to prepare a response in less than 90 days.” Or, “As the employee’s union representative, we exercise our right to file for information related to the removal, and demand that you extend the proposal period to allow us to receive that information and analyze it.”

Well, isn’t that just absolutely unfortunate. In other words, these representatives are asking me, the agency representative, to donate good government money to pay the employee’s salary because the employee’s lawyer is too busy or the employee’s union wants to exercise a right to information. In my world, as agency counsel, I’m busy, as well. And by law we’ve already given the employee access to all the material relied upon in making the decision to propose removal. You’re requesting an extension beyond 30 days? Denied. If you don’t like that, take it up with MSPB (I say this knowing that MSPB has NEVER reversed a removal based on an agency’s refusal to extend the notice period).

On the rare occasion that I am feeling magnanimous or I’m working with a deciding official who took his nice-guy pills that day, I’d be willing to extend the notice period beyond 30 days, but only if the employee is willing to request LWOP for that extra time. You need more time than Congress said is necessary? You pay for it.

The Cure

Now that we’re clear regarding the problem, here’s our FELTG challenge to you.

Try something different.

And here’s the Different Something to try:

  • Establish a group of employees. Select a part of your organization that is relatively representative of the type of work you do. Best to start out with a non-union group to simplify implementation. The bigger, the better.
  • Divide the group in half so that you have a test group and a control group. Make the division as random as possible while maintaining the goal of having two similar groups.

For the control group, retain your current procedures. For the test group, establish new discipline policies as follows:

  1. Recognize only three types of discipline: reprimands, suspensions, and removals.
  2. Delegate discipline authority to first level supervisors. The first line supervisor would issue reprimands, and propose and decide suspensions and removals independently.
  3. HR specialists and legal counsel could be requested to advise at the request of the supervisor, but would have no authority to prevent or delay the supervisor from taking disciplinary action.
  4. The notice period for suspensions of up to 14 days would be 24 hours. For proposed removals, the notice period would be 30 days with no paid extensions granted. Suspensions beyond 14 days would not be allowed. Demotions would not be proposed, but could be implemented as settlement of a removal if the employee and supervisor agreed.

As for unacceptable performance procedures, the test group would implement the following:

  1. Although no proof is required to initiate a PIP, the immediate supervisor will make a list of all mistakes the unacceptable performer has made prior to being PIPed, related to each failed critical element.
  2. PIPs will be for 30 days.
  3. The supervisor will meet weekly with the PIPee to provide feedback on the week’s work.
  4. HR or legal will provide weekly feedback to the supervisor as to the quality of the PIP counseling sessions.
  5. Should the PIPee fail irretrievably prior to the end of the 30 days, the PIP will be terminated and the supervisor will propose the PIPee’s removal immediately. The decision regarding the proposed removal will be made by the second-level supervisor.

For both misconduct and unacceptable performance:

  1. The supervisor will place each employee for whom removal is proposed on administrative leave and deny the PIPee access to the workplace and to the agency’s intranet.
  2. Decisions regarding proposed removals normally will be made no later than the 31st day after the proposal.
  3. HR and/or legal would receive copies of all proposals and have the responsibility to notify the supervisor and higher-level management of any problems that are identified. Notice periods normally would not be extended to provide time for HR or legal notification.
  4. Higher-level management would provide monthly feedback to every supervisor as to that supervisor’s effectiveness regarding employee accountability through discipline and performance improvement.

“Oh, my goodness. Those folks at FELTG must have been smoking some funny tobacco if they think this makes any sense.” Well, don’t give us a hard time. What you see here is EXACTLY what was envisioned by the authors of the Civil Service Reform Act of 1978. The only tweak we’ve added is the mistake list for unacceptable performance. We had to do that because of the way the discrimination and whistleblower laws have developed over the years. Otherwise, you’re looking at a plan and approach envisioned by Jimmy Carter way back when the Bee Gees’s “Stayin’ Alive” was the number one song for the year.

Not a bad anthem for the project, now that I think about it.

Before you implement the project, engage an outside group to develop program indicators and to evaluate the success or failure of the Different Something as time progresses; maybe MSPB or OPM would be willing to provide an evaluation as they have an interest in an efficient government. Oversight by a neutral party would add legitimacy and reduce bias compared to internal evaluation.

FELTG’s No-Catch All-In Offer

For the first agency who is willing to give this approach a try, FELTG will donate at no cost to the agency initial training and on-going support for all of your supervisors who will be participating in the test group. Yes, we’ll have our expert trainers on-site and on-line to get your supervisors up to speed so that they can handle the responsibility of disciplining fairly and effectively. We believe that education is key to using effective government accountability procedures, and we’re willing to put our money where our mouth is. If your supervisors succeed, we succeed. If they screw up, we’ve wasted our time and tarnished our otherwise-sterling reputation.

So put on your big girl or big boy pants, realize that there just might be a better way to do things, and give the old school way a try. FELTG will be right there with you, for better or for worse. If you’re self-important and stubborn, set in your ways, and think that your supervisors are too stupid to handle discipline, then we don’t want to work with you. However, if you believe that employee accountability was always intended to be a front-line responsibility and that people can be educated to do something as straightforward as administering employee discipline, then give us a call: 844-at-FELTG.  Together, we can make the civil service great again. Wiley@FELTG.com