Two Discipline Best Practices Everyone Should Know

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By William Wiley, June 21, 2022

In a recent, relatively unremarkable, non-precedential decision from the Merit Systems Protection Board, I ran across this line:

After reviewing … the appellant’s written reply, as well as the information provided during the oral reply, the deciding official issued a decision … mitigating the proposed removal to a 30-day suspension.

We’ve been teaching the best practices of Federal civil service law for more than 20 years. Most of these best practices were not invented by us. They grew from a careful reading of the 20-plus years of MSPB case law that preceded our founding. The above quote tells us some agencies still don’t understand these basic best practices of civil service accountability. What do we see here that sticks out like a sore thumb? What best practices appear to have been violated here?

BEST PRACTICE No. 1: Do not suspend for more than 14 days.  If an agency suspends an employee for 14 days or fewer, the employee’s challenge to that action stays within the agency (except for affirmative claims that the employee will have to prove before EEOC or the US Office of Special Counsel). There are three good reasons for keeping suspensions short:

  1. An employee can challenge a longer suspension of more than 14 days to the MSPB. At the discretion of the employee, an appeal to MSPB will include an in-person hearing before an administrative judge (with all the related legal filings, official-time testimony, and untoward publicity), review and an opinion by the three Presidentially appointed Board members, review and a decision by at least three Federal judges on the Federal Circuit Court of Appeals, and even consideration by the nine Justices of the US Supreme Court. An employee’s challenge to a suspension of 14 days or fewer stays within agency management, usually just one step above the manager who implemented the suspension (unless the employee is in a union that agrees to hire an arbitrator to hear the grievance). You should not have to think about these two redress options to appreciate why a longer suspension is more resource-hungry and less certain of a righteous conclusion than 14 days or fewer.
  2. Suspending an employee adversely affects the agency. Either the employee’s work does not get done for the length of the suspension, coworkers must assume the extra burden of the employee’s workload, or the work is done by outside contractors ($$$). The longer the suspension, the greater the cost to the agency.
  3. Discipline should be corrective, not punitive. The government gains nothing by punishing employees unless that punishment acts to correct the employee’s misconduct. Although it may seem counterintuitive, there are no science-based studies that conclude that a longer suspension is more likely to dissuade the employee from future misconduct than is a shorter suspension. Look it up.
  • Do you really want to punish employees to get them to do their darned job? There’s good reason to never suspend an employee for disciplinary reasons, but if you must, at least keep it short. 

BEST PRACTICE No. 2:  Do not mitigate a proposed removal to lesser discipline. Hopefully, you know how adverse actions usually work in the Federal government. First, the immediate supervisor issues a proposal notice to the employee that specifies (a) the misconduct and (b) the level of discipline that the supervisor thinks is warranted. Then, a higher-level manager, the “deciding official”, hears the employee’s defense and decides whether the proposed level of discipline or some lesser discipline is warranted. It appears from the above statement that the DO concluded that the proposed discipline was excessive, and unilaterally mitigated the proposed removal to a suspension.

That’s all perfectly legal. However, there is a better way to approach this situation. When a DO concludes that a lesser penalty is warranted, the best approach is to have someone on behalf of the DO talk with the employee and his representative to see if the employee would be willing to voluntarily accept a lesser penalty than the one proposed: “Pat, the Director has considered the proposed removal and heard your response. She thinks that what you did is wrong and that your removal is warranted. However, the Director also believes that you might have learned your lesson and might be able to follow our rules in the future. If you would be willing to admit your mistake, acknowledge responsibility for your actions, and voluntarily accept a lesser disciplinary action, she would be willing to impose a 14-day suspension instead of a removal.”

If the employee accepts the offer, you draft a nice agreement that says that the employee waives all appeal/grievance/complaint rights in exchange for the lesser discipline. If the employee says, “Heck, No! I’ll see you in court, you stinkin’ management goon!!” the DO can still mitigate the proposed removal to a suspension if that’s what’s warranted. Or even stick with the proposed removal, referencing the employee’s refusal to accept responsibility as an aggravating Douglas penalty-selection factor.

There are a lot of people in our field who provide advice to agency management officials. Some use the best practices that we teach at FELTG and do a good job. Others … well, let’s just say that for the sake of our great country, we hope they learn to do better. Wiley@FELTG.com

How is the Federal Personnel Manual Related to Vaccine Refusals? … Or 10 Suggestions for Implementing the Vaccination Executive Order, Part II

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By William Wiley, October 20, 2021 

[Editor’s note: This is the second of a two-part article. You can find the first part here. In the way only he can do, Bill Wiley reminisced about the old Federal Personnel Manual and offered the first five steps of a Checklist to help you implement the COVID-19 vaccination EO. We pick up where Bill left off last week.]

  1. Assuming continued non-compliance, on November 15, the Vaccine Mandate Coordinator proposes a one-day suspension. Those of you in the FELTG Nation are aware that MSPB case law tells us that progressive discipline is not necessary prior to a removal. In addition, there’s good argument a Reprimand in Lieu of Suspension is a better alternative to disciplining continued misconduct. However, given the high visibility that these cases will receive, and the general lack of public understanding of how discipline in the Federal civil service really works, a traditional suspension at this stage is a small step to take to avoid having to argue whether it is necessary (OPM even calls progressive discipline for vaccine refusal the “preferred approach”). You might need to craft exceptions to your existing agency disciplinary/grievance policies to make this work, but that should not be too difficult.

OPM’s guidance recognizes that there is a regulatory difference between separating a career Federal employee by “removal” and a probationary employee by “termination”. Traditionally, agencies don’t engage in progressive discipline with probationers in large part because there is not much of a standard for terminating a probationer other than the generalized non-specific conclusion that the employee is not a good fit in that particular government position. That’s why we don’t have to provide due process or appeal rights in most terminations of probationary employees.

However, though progressive discipline is almost never used with probationary employees, you might want to consider engaging in it when implementing the vaccination EO. OPM doesn’t rule it out and seems to go out of its way to emphasize the importance of it in this situation. Refusing to be vaccinated arguably is a different sort of misconduct from that which usually is the basis for a probationary termination. Maybe the jolt of a suspension will bring the employee in line with the President’s mandate.

Frankly, here at FELTG, we wish OPM had taken a clear stand on this aspect of enforcement. Since it has not, and since the arguments are good on both sides, the decision as to whether to suspend a probationary employee who refuses to comply with the mandate comes down to an individual call as to your patience and your resources.

  1. The government-wide minimum notice period for a proposed suspension of 14 days or fewer is 24 hours. If your agency policy or collective bargaining agreement provides for a longer response period, you will either need to create an exception to your policy or modify the following as appropriate. Otherwise, the suspension proposal notice can be straightforward:

Previously, you have been informed of the requirement that you provide documentation that you have been vaccinated against COVID-19. Upon your failure to comply with this requirement, you were counseled and thereby given an additional five days to provide the necessary documents. As of this date, you have failed to do so. Therefore, this office is proposing that you be suspended for one day in the hope that a suspension without pay will impress upon you the importance of complying with the government-wide vaccine mandate. You may defend your inaction by responding to this proposal by the close of business tomorrow. Any response should be addressed to this office.

  1. Assuming an inadequate (or no) response, on November 17, the VMC issues a decision:

Previously, this office proposed that you be suspended for one day for failure to document that you have been vaccinated for COVID-19. As you have failed to respond to the proposal in a manner that would cause a different outcome, it is the decision of the Vaccine Mandate Coordinator that you be suspended without pay for one day effective tomorrow. If within five days subsequent to the suspension (by November 22) you provide documentation that you have been vaccinated as required, no further action will be taken. However, if you continue to fail to provide the mandated documentation, this office will propose that you be removed from Federal employment. If you so choose, you may challenge the validity of this suspension decision by filing a grievance with this office as soon as possible.

  1. November 23: You got bupkis. Either the employee does not understand the gravity of the misconduct, or the employee is daring you to do something about it. Oh, sure; perhaps the employee has deeply held beliefs that the vaccine will cause the development of a third eye, or the whole “pandemic” is a government hoax. Maybe the employee has done independent research and decided to accept the opinion of someone on the Internet with “secret information” he obtained from the friend of a cousin (who has twice been probed by aliens) instead of the findings of every single reputable scientific body in the known universe. If so, personally my heart breaks. Still, as an agency, you have little choice at this point. You have to initiate the removal of the employee from government service. Here’s your proposal notice:

Previously, this office counseled you, then suspended you, for your failure to comply with the order that you provide documentation that established that you have been vaccinated against COVID-19. Therefore, it is with regret that by this notice your removal from service is proposed. In selecting the penalty of removal, in addition to your previous disciplinary record, I have considered the following factor:

The nature and seriousness of the offense and your willful repeated failure to comply with clear notice of the vaccine mandate.

Within the past 45 days, the agency provided you notice of the government-wide mandate for you to obtain full vaccination against the COVID-19 virus, and to provide documented proof of your compliance (attach 1). Should you have been confused about the necessity to comply with the mandate, this office previously counseled you and then suspended you to give you the opportunity to comply with the documentation requirement, or to otherwise defend your inactions (attachments 2 and 3). Yet to this day, you have failed to provide the necessary documentation.

As for the seriousness of the offense, you have failed to comply with a government-wide Presidential order regarding a matter of life-or-death, relative to yourself and to those with whom you come in contact as a Federal employee. The Executive Order highlights the importance of a Federal employee being vaccinated:

“The health and safety of the Federal workforce, and the health and safety of members of the public with whom they interact, are foundational to the efficiency of the civil service.  I have determined that ensuring the health and safety of the Federal workforce and the efficiency of the civil service requires immediate action to protect the Federal workforce and individuals interacting with the Federal workforce.  It is essential that Federal employees take all available steps to protect themselves and avoid spreading COVID-19 to their co-workers and members of the public.  The CDC has found that the best way to do so is to be vaccinated.

The Safer Federal Workforce Task Force (Task Force), established by Executive Order 13991 of January 20, 2021 (Protecting the Federal Workforce and Requiring Mask-Wearing), has issued important guidance to protect the Federal workforce and individuals interacting with the Federal workforce.  Agencies have also taken important actions, including in some cases requiring COVID-19 vaccination for members of their workforce. 

Accordingly, building on these actions, and in light of the public health guidance regarding the most effective and necessary defenses against COVID-19, I have determined that to promote the health and safety of the Federal workforce and the efficiency of the civil service, it is necessary to require COVID-19 vaccination for all Federal employees, subject to such exceptions as required by law.”

Should you provide the required documentation by the end of the notice period, this proposed removal action will be cancelled and no record of it will be retained in your official personnel folder. Should you provide proof that you have begun the process of becoming fully vaccinated using a two-dose series, but have not yet completed the vaccination cycle, the decision on the proposal will be delayed to allow you an opportunity to complete the requirements of your particular vaccine protocol

[Your agency’s standard rights-notification would go here.]

  1. December 23, at the expiration of the statutory 30-day notice period for proposed removals, assuming continued non-compliance, you issue the decision:

Thirty days ago, this office proposed that you be removed due to your failure to provide documentation that you have been fully vaccinated against COVID-19. Finding your continued non-compliance and no mitigating factors warranting a different outcome, it is the decision of the agency that you be removed from Federal employment, effective tomorrow.

[Your agency’s standard rights-notification would go here.]

That’s it. Nothing fancy, just classic civil service accountability procedures. They work most every time if you know what you’re doing. And if you’ve been to any FELTG training on this topic in the past 20 years, you already know this stuff. To save us all a little time, let me take a guess at a few questions you might have.

Question: FELTG has taught for many years that in a proposed removal, the deciding official should issue a decision soon after the employee’s response, usually within just a couple of days. Why are you recommending here to delay the decision to the end of the 30-day notice period? For unexplained reasons, OPM’s implementation guidance requires that the employee be retained at the worksite during the proposed removal period: “Employees should not be placed on administrative leave while pursuing an adverse action for refusal to be vaccinated.” Obviously, this is dangerous to coworkers and clients of the agency, even when safety protocols are in place for non-vaccinated workers. Since you will have to keep employees in the workplace during the notice period, it would be unnecessarily dangerous during that period to inform them that the decision has been made to fire them, then continue to allow them to access the workplace. We NEVER want a disgruntled employee to have access to a government worksite any more than necessary (just read the horrific news articles to appreciate what can happen when “disgruntled employees” get angry at their coworkers). Therefore, keep the employee around, but in the dark as to the outcome, until you can immediately implement the removal.

Question: There are 12 Douglas Factors. The proposed removal notice mentions only two or three (Nos. 1, 3, and 9). Why does it not discuss the others?  The Board has held that an agency does not need to assess all Douglas Factors, only those relevant to the specific case. As the EO requires removal for failing to get vaccinated, and the employee by this point has failed to get vaccinated, there’s really no lesser sanction available once the misconduct is established. As for consideration of a second, more severe, suspension in lieu of removal, there’s no case law nor science that establishes that a second longer suspension is more likely to correct behavior than was the previous suspension. Remember, we’re trying to correct behavior – to get the employee vaccinated – not trying simply to punish the employee for misbehavior. Plus, time is of the essence.

Question: What about our labor relations obligations to the unions? Absolutely you need to satisfy the statutory and contractual requirements relative to implementing a new agency policy. Exactly what will be involved in meeting those obligations is beyond the scope of this little article. However, it’s worth noting the language of the official guidance on implementing the vaccine mandate policy: “[B]argaining over this Government-wide policy will be limited to impact and implementation issues not otherwise addressed in the guidance. Moreover, agencies must implement Government-wide policy by the deadline, so any bargaining that has not been completed by the time implementation must begin will have to be finished post-implementation.”

Question: What about a request to be excused from the vaccine mandate to accommodate a disability?  Another topic for a great long article, but not in this space. There are so many variables to deal with, it’s hard to develop a common strategy other than the usual approach:

  • Require that the employee provide evidence of the specific medical condition that prohibits vaccination. Once it’s provided,
  • Have agency personnel review the employee’s medical evidence to see if an inability to be vaccinated is warranted by the proffered evidence. If it is,
  • Evaluate the employee’s duties and workplace to see if they can be modified so that the employee can perform safely without being vaccinated (be sure to consider steps that might allow the unvaccinated to work such as providing employee isolation, masks, and periodic testing). If not,
  • Search the agency for vacant positions at the same grade and lower to which the employee can be accommodated and offered reassignment. If there are none,
  • Fire the employee for Medical Inability to Perform.

Question: What about a request to be excused from the vaccine mandate to accommodate a religious belief? Unless I had smoking gun evidence that the employee’s claim was a ruse to get out of being vaccinated (e.g., an email with sad little green emojis ? coupled with an admission that the employee doesn’t really have valid religious beliefs), this Old Practitioner would yield to the claim and start looking at accommodations. If you would prefer to fight out before EEOC whether the employee’s religious beliefs are a “sincere and meaningful belief that occupies a place in the life of its possessor parallel to that filled by God,” “part of a comprehensive religious belief system” and not simply an “isolated teaching,” then bless you. We can always use the case law.  Hope this helps. Best of luck out there. Wiley@FELTG.com

How is the Federal Personnel Manual Related to Vaccine Refusals? … Or 10 Suggestions for Implementing the Vaccination Executive Order, Part I

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By William Wiley, October 12, 2021

This is the first of a two-part article.

Ah, the good old days. As a fresh-faced lowly Navy Civilian Personnel Intern back in the 70s, one of the jobs that fell to me periodically was to update the Federal Personnel Management guidance. For those of you too young to have had the experience, here’s a quick history lesson. The US Civil Service Commission, followed in 1979 by the US Office of Personnel Management, published and maintained a many-volumed three-ringed-binder set of hands-on guidance relative to all the various federal laws and regulations related to managing a federal workforce. Throughout the week, every personnel office in government received by mail sheets of three-hole punched CSC/OPM guidance updates that had to be filed (CORRECTLY!) in the proper volume (I think there were about 20 volumes). In addition, each agency (and many times agency subcomponents) also issued similar to-be-filed guidance adding a specific tweak or exercising a flexibility in the overall government-wide personnel guidance.

In the Navy, that meant we got instructions from the Department of Defense, the Department of the Navy (on blue paper, of course), and then for me at the San Diego Naval Hospital, occasional additional instruction from the Navy’s Bureau of Medicine and Surgery (BUMED). All had to be filed in the correct topical-index order in the correct date order or be prepared to suffer the wrath of senior personalists who couldn’t find something. Yep, if we need to know the proper size font to use in a Letter of Reprimand, there was guidance on that and every other detail one might need to make a personnel office hum.

Then came Al Gore.

In the early part of the Clinton administration, the White House became convinced that the reason that personnel work in government (now called, affectionally, human resources) was so slow and ponderous was because of all that darned guidance. So, the President directed OPM to stop issuing or maintaining the FPM. VP Gore had the fun of setting on fire a collection of those volumes of government guidance, thereby freeing agencies to do whateverthedevil they wanted to do, constrained only by the law and the federal Code of Regulations. Yes, finally, no more updating work for the interns to do and no more detailed, front-line guidance on implementing a legal and regulatory effective human resources program. Of course, with the freedom to do whatever came the freedom to make mistakes, and the freedom not to do anything or to do it slowly because without guidance, whothedevil really knows what to do?

Since the abolishment of the FPM in the early 90s, OPM has done what it could to provide agency guidance beyond the CFR. Some years it did a better job than others. This past year OPM has provided quite helpful baseline advice to those of us in the federal employment law field. For example, on September 9, the White House mandated by Executive Order that all federal employees must receive their last dose of vaccine against COVID-19 by November 8, or be fired. In implementation of that directive, OPM now maintains a “Safer Federal Workforce” website that, among other things, tells agencies how to handle employees who decline to comply with the EO and get vaccinated. Separately, a week or so ago, OPM issued a detailed question-and-answer document entitled “Guidance on Enforcement of Coronavirus Disease 2019 Vaccination Requirement for Federal Employees – Executive Order 14043”. We may not be back in the good old FMP three-ring-binder update days, but we are pleased to see OPM in the game.

If FELTG can claim any modicum of success from these past 20 years, and if it has made any contribution at all to a successful civil service, it is that FELTG has taught forever the straightforward way to get things done, legally, fairly, and expeditiously. With that goal in mind, and in consideration of all the good work done so far by OPM, here’s a nice little 10-step how-to FELTG Checklist for you to follow to implement the COVID-19 vaccination Executive Order:

1. First, your agency will benefit greatly from an agency-wide policy regarding the mandate. As FELTG President Deb Hopkins has said, if we leave the decisions up to individual supervisors as is done under most all agency disciplinary policies, we’re going to have a really inconsistent mess on our hands. Normally, FELTG would argue for managers to be able to make individual disciplinary decisions without someone outside of the organization telling them what to do. This EO requiring removal government-wide for a very particular act of misconduct is not a normal disciplinary situation.

2. The policy should identify a Vaccine Mandate Coordinator (VMC). That office should be responsible for oversight of the program and other responsibilities enumerated below. Depending on the agency’s size, the responsibilities of the VMC might be collateral to existing duties or might be best served by the short-term employment of a full-time coordinator (a re-employed annuitant or two might be perfect). In any case, the VMC should have expertise in and receive consultation from human resources, the disability accommodation office, and the general counsel’s office.

3. The agency policy should require, initially, that the employee be notified of the required information regarding the benefits of vaccination, the ways to obtain the vaccine, and a warning that getting vaccinated is required to maintain federal employment. For evidentiary purposes, the information should be provided in a documented manner such as an email to the employee; maybe even more than once.

4. The notification also should set a deadline for the employee to provide the acceptable documentation and certification to the employee’s supervisor. OPM recommends that date be November 8. On November 9, the supervisor should forward all documentation and certifications to the agency’s VMC. If any employees have not provided the required documentation, the supervisor should identify those employees for the VMC.

5. Within 24 hours, the VMC should initiate the formal enforcement process with counseling and education. “What?!? Only 24 hours later? Around here, we can’t get out an invitation to a birthday cake cutting in the break room in fewer than three days.” Well, get better. You need to move promptly to comply with the deadlines in the EO. You can do this by centralizing the process, with the added benefit of relieving the immediate supervisor of a requirement for confronting the employee. Plus, the more time you give the employee to comply before you have to initiate a removal, the fairer you are to the employee.

OPM calls this step “counseling and education.” Here at FELTG, we would have taken the more traditional step of issuing the employee a formal reprimand. While a counseling has the appeal of sounding a bit more friendly, a reprimand is more formal, better documented, and less ambiguous. Plus, it might well engage the employee’s union representative in the discussion, perhaps adding a dose of rationality to the employee’s thinking process.

Although not a reprimand, we believe that the counseling should be documented, to add seriousness to the situation and to create defensive evidence for the agency down the road. The counseling can be very simple: “Previously, you were notified of the benefits of and government-wide requirement for federal employees to be fully vaccinated by November 21, 2021. You were given until November 8 to provide documentation that you have complied with this requirement. You have failed to meet this deadline. Therefore, you are being counseled to impress upon you the importance of this requirement. Should you fail to provide documentation of compliance within the next five days (by November 14), you will be subjected to discipline, including removal from federal service.”

You can issue the counseling by email. No need for a signed-as-received hard copy. No need to provide grievance rights (in most agencies) because you have not entered a document into the employee’s official personnel file. Be sure to include links in the counseling to the educational components relative to getting vaccinated that are available on the web.

The second part of this article, including steps 6-10, will appear in the October FELTG Newsletter next week.

Performance Isn’t About Can’t Do vs. Won’t Do

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By William Wiley, September 7, 2021

Below is an email we received from a FELTG student, lightly edited for space and context, followed by our FELTG answer.

Dear FELTG,

I attended your MSPB Law Week in person last year just before everything was shut down due to COVID. I recall your discussion about performance management, and you made a statement that I swear I wrote down but cannot find in my notes. I was wondering if you might be able to reiterate. You said something along the lines of “Performance vs. conduct is not a matter of can’t do and won’t do.” This can’t vs. won’t is something I was taught as a young ER practitioner some years ago. However, your explanation was MUCH better!

Thanks in advance.

And the response:

Ah, the old “can’t do vs. won’t do.” Has a nice ring to it. The reason that FELTG teaches that this is an incorrect concept is based in law and, unfortunately, the law doesn’t always have a nice catchy rhythm.

If we read the statute that lays out the procedures for taking a performance-based removal (codified at 5 USC 4303), we don’t see anything that speaks to volition. Therefore, the willfulness of an employee’s unacceptable performance is not a matter of law with which we need to be concerned when initiating a performance removal. We don’t have to care whether the employee says, “Boss, I refuse to work that hard” or “Boss, I can’t work that hard.” If the employee is not performing at a level that the supervisor sets as the minimum level of performance, we can initiate a 432-performance action.

Being able to initiate a 432-performance action without concern for can’t v. won’t is important for several reasons:

  • It’s one less case element we have to prove on appeal. It gives the employee one less thing to argue with us about. Reducing arguments is a very desirable outcome.
  • 432-performance actions are a fast, efficient procedure for dealing with a documented non-producing employee. We can initiate a 432 action today by giving the employee a notice that specifies the performance elements being failed, and then propose the employee’s removal 31 days from now if performance does not improve to the minimal level. In contrast, a 752-misconduct action (a reference to 5 USC Chapter 75 adverse action removal procedures) many times involves an initial Reprimand (which might be grieved), followed by a proposed-then-decided Suspension (which also might be grieved), and THEN by an eventual proposed Removal. Those steps invariably take more than 31 days.
  • Separately, performance-based removals need be supported by only substantial evidence, whereas misconduct-based removals must be proven by the higher burden of a preponderance of the evidence. And MSPB cannot mitigate a performance-based removal to something else. No Douglas Factors to worry about. 432-removals are the preferred procedure to deal with problem employees who can’t or don’t do what they are told to do performance-wise.

In addition to all of this, we have to acknowledge that there are exceptions to the concept that can’t-do problems are necessarily addressed via a 432-performance-based action. We routinely use 752-adverse-action procedures to remove employees who can’t do things, e.g.:

  • The employee who can’t come to work because of matters beyond the employee’s control where leave has been approved (Excessive Absence)
  • The employee who has a medical limitation and, thereby, can’t perform an essential job function (Medical Inability to Perform)

I hope you either read one of our earlier FELTG articles and/or attended our webinars that explained that the Federal Circuit recently changed what management is required to do when confronted with a non-performing employee. Previously, we had to prove that the employee was put on notice of on-going unacceptable performance (usually by the supervisor initiating a Demonstration Period, i.e., a DP), and then prove that the employee did not perform acceptably during the DP. Now, we also must prove that the employee was performing unacceptably BEFORE the DP was initiated.

Bottom Line: Assessing whether a problem with an employee is “can’t do or won’t do” is unnecessary and possibly misleading. It’s better just to focus on the outcome when dealing with a poor performer. When it comes to the concept of volition – can’t do vs. won’t do – Master Yoda said it most succinctly, “You must unlearn what you have learned. … Try not. Do, or do not. There is no try.” Hey, if we can’t rely on the wisdom of a little, old, green alien, who can we trust?

Best of luck out there. Wiley@FELTG.com

 

The To-Do List for the New MSPB Board Members

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By William Wiley, July 21, 2021

By now you probably have heard that the White House finally has nominated two individuals to be Board members over at the US Merit Systems Protection Board. After more than four years of the civil service having no oversight agency to protect the fundamental rights of federal employees, Cathy Harris and Raymond Limon are now grinding their way through the Senate confirmation process, hopefully to be confirmed sooner than later. Based on my many years working at MSPB, with 12 of the 20 Board members we have had in history, I think I can speculate with some degree of accuracy what awaits them once they get there:

  • When I joined the newly confirmed MSPB chairman’s staff in 1993, there were 62 holdover cases awaiting his vote. That felt like a HUGE number of cases to dig through, given that a Board member needs to vote on about five appeals a day just to stay even (i.e., a member who is voting out five cases a day is doing a full day’s work in service to our great country). Our next Board members will be facing a holdover backlog of almost 3500 appeals!
  • The Board will have to decide how it will attack this overwhelming backlog. The obvious options would be to address cases first-in/first-out (oldest first), work the removal cases first because they are the most serious matters within MSPB’s jurisdiction, or perhaps try to pinpoint pending cases that have the most significant controversial issues that need to be cleaned up ASAP so their principles can be applied to other cases. Or, quite frankly, any other way the Board decides to plow forward: alphabetical, random, or eeny, meeny, miny, moe. There is no legal standard nor precedence for the new members to look to when deciding how to move forward.
  • I say “the Board” because historically big decisions like this would be made through consensus of the sitting Presidentially appointed Board members. However, as a strictly legal matter, the new chair has the sole authority to make decisions like this. During the early days of the new MSPB, the hierarchy of decision-making and comity among the members will have to shake itself out. Although Board members have worked together (with occasional exception) with a respectable degree of deference and cooperation in the past, nothing guarantees that such mutual respect will carry forward into the future. By law, all three members cannot be from the same political party. As I understand it, the current two nominees are Democrats. A third member would no doubt be a Republican, and we’ve all seen what can happen when that happy mix occurs.

Speaking of a Republican appointee, I must admit that I’m unsure what’s happening there. Historically when confronted with multiple vacancies requiring a mix of Democratic and Republican nominees, a White House would seek suggestions from the Senate leadership of the other party for the out-party seats. Then, a package would be put together that incorporated who the White House wanted and who the leadership of the other party wanted into a nice uncontroversial package that would receive a prompt Senate confirmation vote. Has this White House decided not to package? Or is it going to accept an individual already nominated by the past Republican administration for the third vacancy at MSPB? Readers better connected than am I may have picked up on what’s going on, but I haven’t seen it from where I sit.

Aside from these incredibly important matters of Board protocol, each member will be considering several personal matters that are part of being a Board member:

  • Staff: MSPB employs a fine headquarters staff of career employment law attorneys. No doubt, some of those career attorneys will be detailed to each new Board member immediately once they take the oath and start considering cases. Beyond that initial period, each member will be allowed to select political appointees to serve as legal counsels, sort of like a federal judge would appoint law clerks. In many agencies, these second-level political appointees would be controlled by the Executive Office of the President or the Office of Personnel Management. A White House often has a long list of political supporters who would just love to have a good government job. However, by law the chair of the Board can make these political appointments without having to get approval from anyone else, 5 USC 1204(j). For those of you readers out there interested in a little career change, we can expect to see the new Board members quickly putting out recruiting feelers.
  • Issues: Some newly appointed Board members, especially those with extensive federal law experience, walk in the door with issues they want to address in a new decision with their name on it. Others may have to vote on several cases before they develop a feel of issues that really matter to them. One Board member I worked with had an alcoholic in the family, so he closely reviewed any case involving an alcoholic to make sure that the appellant’s rights were protected. Another member I worked with had represented unions in the private sector and strongly believed in the importance of independent decision-making by arbitrators. Another had grown up in a military family where adherence to rules and order was important. Just like Justices on the Supreme Court, each member will develop a particular interest in some aspect of federal employment law and devote significant time to making sure that issue gets well-analyzed in any final opinions that are issued.
  • The next appointment: As is true for just about any Presidential appointment in the executive branch, these jobs come with an expiration date. Although the law provides that a Board member’s term is for seven years, that seven-year period starts on March 1 of a particular year, regardless of when the individual is confirmed to serve in that position. To my knowledge, no one has ever served a full seven years as a Board member. One of the Board member positions to which this White House will be nominating an appointee expires in just about 18 months. So, unless an appointee is at the end of a career, he or she needs to be thinking down the road and working toward the next job. Very few individuals have used an appointment as an MSPB Board member as the steppingstone to an even higher-level government position.

And finally, there will be lots of odds and ends to decide:

  • Will the members consider and vote cases remotely, so they never have to come into the office?
  • Should the members personally discuss the arguments in the appeals before they are voted on?
  • Can the members engage in public outreach by speaking at conferences and seminars, or is their time better spent cloistered in some warehouse reviewing appeal files and reading case law while subsisting on energy drinks, caffeine tablets and meat-lovers pizza?

These new members will have an unprecedented herculean task before them. Although I was honored to serve on the three occasions I was tapped as counsel to a member, I am happy that I have now taken a downgrade into civilian life. I am hopeful that the new members and their staffs enjoy themselves in their service as much as I did. I appreciate the good that they are doing for our country by helping to keep the federal government based on deserved merit and not strictly political philosophy. May the force be with them.

Also, it would be a good idea for them to put a cot and pillow in the corner of their offices. Wiley@FELTG.com

Two Words for MSPB AJs Mitigating Removals to Demotions: Please Stop

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By William Wiley, May 3, 2021

President Biden recently nominated Cathy Harris as Chair of the Merit Systems Protection Board, and hopefully soon he will nominate two other individuals who will provide us with a full Board. And you can bet that on behalf of The Nation, good old FELTG will have some recommendations for the new leadership to consider.

One of them is a cure for a complaint we’ve long expressed in this newsletter over the years, and which we will re-surface every chance we get. We were reminded of the problem in a court decision earlier this year, Lowe v. Navy, Fed. Cir. No. 2020-1564 (Jan. 11, 2021). That non-precedential decision contained nothing legally spectacular within itself, and resulted in the affirmation of the administrative judge’s decision in Lowe v. Navy, No. DC-0752-19-0053-I-2, 2019 MSPB LEXIS 4415 (Dec. 2, 2019). The problem that we hope the new Board leadership will correct is found in the AJ’s decision.

The Navy fired Mr. Lowe from the position of a GS-13 supervisor based on two charges. Finding one of the charges not proven, the AJ mitigated the removal to a demotion to a non-supervisory GS-12. And that’s what the new Board leadership should stop AJs from doing — mitigating removals to demotions. Here’s why:

We know nothing about the specifics of the work situation in which this appellant was employed. Theoretically, however, it could be a small organization, as would be the case in which any individual is fired from government. There is nothing in the record to show that when ordering the mitigation of the removal to a demotion, the AJ gave any consideration to the needs of the agency, its organization, and the availability of work for the appellant to perform once he is reinstated to a lower grade. It is conceivable that there actually is no GS-12 work available for the restored employee to perform in the organization from which he was removed.

To comply with the AJ’s mitigation order, the agency has to either find a vacant position elsewhere within another organization within the agency or create work that doesn’t actually need to be performed at the GS-12 level in the original organization. Perhaps there is an available GS-12 position within the agency, but at a location hundreds of miles away, thereby requiring that the employee be physically moved, perhaps against his will. Or, perhaps worst of all, assign the restored appellant to do lower-graded work while being paid at the GS-12 level, thereby violating all the rules of position classification and good government common sense.

Sure, the Navy is a big agency potentially with lots of available positions or work to be done that is not yet organized into a position. But what if the employing agency had been a much smaller one with limited work to be done? What if the appellant in this case had been located in a remote Navy facility, thereby necessitating an agency-funded PCS move to another work location to find GS-12 work? A board AJ is in no position to assess these organizational factors when ordering a demotion in lieu of a removal and should not mitigate a removal to a lower-graded position.

So, what should the new Board leadership direct AJs to do in a situation in which the judge decides, for whatever reasons, that some penalty is warranted, but the appealed removal penalty is too severe and demotion might be more reasonable? Ah, fortunately for humanity, we here at FELTG have a few options to recommend that the AJ can do:

1. Set aside the removal and restore the appellant to his old position. The agency has said, “This guy deserves to be fired because of the following reasons.” When it does not prove those reasons, then it loses. It would then be left up to the agency, upon restoration, to decide if a new penalty was warranted. If that new penalty was within the Board’s jurisdiction, the employee could file a new appeal. That would parallel what is done when a criminal prosecutor brings a charge of murder, but does not prove that the killing was premeditated or otherwise fully comports with the legal definition of murder. The jury doesn’t get to step in and rule that the individual should instead be found guilty of some separate charge that was not brought.

2. Set aside the removal and remand to the agency to reconsider the penalty in light of the AJ’s conclusions. The AJ could set a time limit for the agency to act and retain jurisdiction to review any new proposed disciplinary action to see if it is within the bounds of reasonableness. Upon finding that it is (or remanding again until it is), the judge would issue a decision that would be appealable to the Board, as is usual.

3. Set aside the removal and remand to the agency with specific options. The AJ’s initial decision could conclude with language like this, “Having found that removal exceeds the bounds of reasonableness, I hereby direct the agency to place the appellant into a non-supervisory GS-12 position within the same geographic area now employed, if one is available. If such a position is not available, then I find that the maximum penalty for the sustained charge is an X-day suspension.” That way, the agency gets to consider its organizational needs and work availability when deciding which penalty makes the most sense.

Position management decisions should not be made by Board judges. Reinstated employees should not have to be reassigned geographically to comply with an AJ’s reversal of a removal. The new Board members should develop another option for AJs to implement when they determine that the removal of a supervisor is beyond a reasonable penalty, other than demotion. Wiley@FELTG.com

When is a Judge Not a Judge?

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By William Wiley, March 16, 2021

Perhaps you’ve heard of this issue. In 2018, the US Supreme Court caused a bit of a civil service uproar when it held that a certain group of administrative law judges were “inferior officers of the United States.” That meant that each had to be appointed by a Senate-confirmed Presidential appointee to comport with the US Constitution and, thereby, to legally perform their duties.  Lucia v. SEC, 138 S. Ct. 2044 (2018).

You see, the Constitution sets up several categories of Federal civil servants. By far, most people who work for the government are simply “employees” hired by whoever the agency identifies to be the selecting official, and appointed to fill a vacant position. However, there’s another much smaller group of employees who are considered to be “inferior officers of the United States” because they exercise significant authority on behalf of the government. Those individuals –  those inferior officers – must be appointed subject to the Appointments Clause of the Constitution. To comport with the Appointments Clause, the individual must be appointed (i.e., hired) by the President or by someone appointed by the President who has been confirmed by the Senate (such as the agency head). A regular old selecting official at an agency does not have the authority to appointment someone to an “inferior officer” position. (The third group of appointees in the executive branch, not at issue here, are the “Principal Officers,” also known as “non-inferior” officers. Those individuals are appointed only by the President with confirmation by the Senate.)

In Lucia, unfortunately for the SEC, the ALJs at issue there had been appointed without consideration for the appointments clause. When the Court concluded that those SEC ALJs were “inferior officers” rather than just regular old Federal employees, the validity of the decisions that those ALJs had been issuing were called into question. You don’t have to understand what an SEC ALJ does to appreciate from a civil service adjudication aspect what a nightmare Lucia has caused.

Well, it didn’t take long for some smarty-pants agency practitioners to think, “Hey! administrative law judge (ALJ) sounds a lot like administrative judge (AJ). If SEC ALJs have no authority to issue decisions because their appointments don’t comply with the Appointments Clause, then the same must be true for MSPB AJs.” And off they went to object to any appeal filed with the Board subsequent to Lucia, thereby causing roughly 200 Board appeals to be blocked. As there have not been any Presidentially appointed Board members at MSPB for several years, there has been no resolution of these objections. That means that a couple of hundred appellants have nowhere to go with their appeals until we get a functioning Board again, which will happen after President Biden names his nominees and they get confirmed by the Senate.

Obviously, this is a big deal for the entire civil service. Will all the decisions issued by all the MSPB AJs be mooted out once the Justices on the Supreme Court eventually rule on this issue? What about the AJs over at EEOC; are they in the same category? To test your potential to be a Supreme Court Justice, let’s go through the criteria for identifying a position as an “inferior officer” and see what you come up with.

The Appointments Clause of Article II of the Constitution reads as follows:

“[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.” U. S. Const., Art. II, § 2, cl. 2.

Early Supreme Court cases that wrestled with this article concluded that inferior officers of the Federal government exercise “significant authority pursuant to the laws of the United States.” In later cases, the Court reasoned that individuals who are either principal or inferior officers subject to the Appointments Clause “hold a continuing office established by law” and exercise “significant discretion when carrying out ‘important functions.’”

Here are some functions the courts have concluded suggest that work being done is an important function requiring significant authority and discretion:

  • Taking testimony at hearings
  • Receiving evidence and examining witnesses
  • Administering oaths, ruling on motions, and generally regulating the course of a hearing
  • Ruling on the admissibility of evidence, thereby shaping the administrative record

Wow, that’s starting to sound a lot like what an MSPB AJ does. If I were arguing that Board AJs are “officers” of the government that had to be appointed personally by the Chairman of MSPB, I’d rely on a lot of these facts to support my argument.

However, to my read, the whole argument that Board AJs are subject to the appointments clause of the Constitution falls apart when I see that it is the independence of this “significant” authority that has caused the courts to find similar hearing adjudicators to be officers of the government. MSPB administrative judges do not act independent of supervision when adjudicating appeals. They have no guarantee of independent decision-making in law. 5 USC 1205 states that the power to hear and adjudicate appeals within MSPB’s jurisdiction rests in the Merit Systems Protection Board. The Merit Systems Protection Board is defined at 5 USC 1201 as the three Board members appointed by the President with the consent of the Senate. Once appointed, the Board can designate employees to administer oaths, examine witnesses, and receive evidence (5 USC 1201(b)(1)), but nothing in law allows the Board to designate employees as the final arbiter of appeals within MSPB’s jurisdiction.

Relatedly, the Board can appoint by law two categories of individuals to perform these designated functions: “administrative law judges” and “employees.” There must be a meaningful distinction between the two categories or the statute would not have bothered to identify them separately. Courts that have dealt with questions regarding the applicability of the Appointments Clause  to adjudicatory positions have found that individuals occupying “administrative law judge” positions to be exercising “significant independent authority.” Most likely, those individuals identified simply as “employees” do not have equivalent independent authority even though they may be performing functions that appear to be similar.

AJs have no more authority to act than the authority they are delegated by their supervisors. Supervisors of AJs get the authority to delegate authority as it is delegated to them pursuant to statute by the Board members. AJs issue “Initial Decisions,” subject to challenge by either party or simply to unilateral reopening by the Board members themselves. In my opinion, MSPB AJs do important difficult work and are deserving of all the respect that we can give them. However, it seems to me that they are technically below the “significant authority” requirement necessary for the Appointments Clause to be applicable to them. My guess would be that we can continue to rely on their decisions being valid even though they were not hired personally by the Board Chairman. Wiley@FELTG.com

President Biden and the Trump Civil Service EOs: What It All Really Means

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By William Wiley, February 22, 2021

Well, it didn’t take long, did it? In his first three days on the job (not bad for a probationer), President Biden recognized what most every reader of this newsletter already knows: “Career civil servants are the backbone of the federal workforce.” Take THAT, you crummy old political appointees. You just got slammed by The Man in the White House.

On Jan. 22, 2021, the White House issued the “Executive Order on Protecting the Federal Workplace,” developed in large part to set aside several EOs issued by the previous White House. Those Trump EOs, in the eyes of many, undermined or had the potential to undermine a number of core statutory protections for career federal employees.

It’s our job here at FELTG, among other things, to try to explain to normal people what actions like this really mean out there on the front lines where most of you in the FELTG Nation spend your time trying to do the work of government. So here we go with our insightful and occasionally scintillating analysis. (Editor’s note: For more detailed analysis, join Ann Boehm and Deborah Hopkins for an encore presentation on Changing Course: Understanding Biden Executive Order on Labor Relations, Performance, Discipline, and Schedule F on Thursday at 2:30 pm.)

First things first: DO NOT BE MISLED BY WHAT YOU HEAR OR READ IN THE MEDIA. Whenever you read a newspaper article about these EOs or see a talking head “expert” on CNN or Fox, keep in mind that those (usually) well-intend folks are there to grab your eyes, not necessarily to provide detailed guidance to exactly what is happening. “If it bleeds, it leads” is a decent motto for a reporter, but that doesn’t always fit with the bottom line to what’s really going on. For example, from the very first that the previous EOs hit the ground in the summer of 2018, articles in the media often read as if it was the End of the World for Federal employees. Our friends on the union side were horrified and appalled at what was happening to their rights. Lawyers who represent employees in appeals and grievances were beside themselves with the restrictions being imposed by the White House on the Federal workforce protection processes. Even Federal judges, when called upon to rule on related cases before them, did not always take the time to parse out exactly what the Trump EOs were doing, and not doing, to the civil service.

Our job here a FELTG is to inform and provide guidance related to civil service law. Whether it bleeds or not, makes little difference in our analysis of these issues. Neither should yours. Read those articles and watch MSNBC or Newsmax every chance you get. Just keep in mind that you need a more balanced analysis to decide what you have to do to implement this new Biden EO. So here we go with our view of balance:

Executive Order on Protecting the Federal Workplace

There are a number of issues addressed in the Biden-EO that are important, but beyond the scope of this limited article:

  • The dreaded Schedule F is revoked (❤).
  • Centralized OPM control of labor relations is revoked.
  • The direction that management representatives negotiate to restrict union time, deny unpaid union access to government facilities, and limit the scope of grievance procedures is revoked.
  • The prohibition on negotiating the “permissive” subjects of bargaining, 5 USC section 7106(b)(1), is revoked.

These issues arose because of the issuance of EOs 13836, 13837, and 13957. As a practical matter, these three EOs (of the four being rescinded) were the most controversial from a legal standpoint and were challenged in Federal court immediately upon issuance.

That leaves EO 13839, “Promoting Accountability and Streamlining Removal Procedures Consistent with Merit System Principles.” Unlike the other Trump EOs being set aside by the Biden EO, there were no big legal issues being put into play. Rather, EO 13839 simply directed agencies to exercise their existing legal discretion, defined by 40 years of MSPB case law, in a particular manner. A number of articles written at the time of issuance described this Trump EO as taking away existing employee rights. Well, as we wrote in this newsletter at the time, there were NOT any employee rights being violated. Yes, the EO directed that managers exercise their existing flexibilities in a narrow manner disliked by a number of employee representatives in our field, but that didn’t make the EO mandates illegal.

EO 13839

Here’s what the Biden EO says about this particular “accountability” EO:

Sec. 3 (c) Executive Order 13839 of May 25, 2018 (Promoting Accountability and Streamlining Removal Procedures Consistent with Merit System Principles), is hereby revoked.

Sec. 3 (e) The heads of agencies whose practices were covered by Executive Order … 13839 shall review and identify existing agency actions related to or arising from those orders. Such actions include:

Sec. 3 (e)(v) Revisions to discipline and unacceptable performance policies, including ones codified in bargaining agreements, issued pursuant to section 7(b) of Executive Order 13839;

Sec. 3 (f) The heads of affected agencies shall, as soon as practicable, suspend, revise, or rescind, or publish for notice and comment proposed rules suspending, revising, or rescinding, the actions identified in the review described in subsection [above].

Carefully notice what this EO requires you to do (and, conversely, what it does NOT require you to do):

  1. Read section 7(b) of Trump Executive Order 13839, which says, “The head of each agency shall take steps to conform internal agency discipline and unacceptable performance policies to the principles and requirements of this order,”
  2. Determine which agency discipline and performance policies were modified because of EO 13839, and then
  3. Rescind those policies.

These are the requirements that EO 13839 mandated you to include in your agency’s policies:

  • Limit opportunity periods to demonstrate acceptable performance (DPs/PIPs), generally, to 30 days.
  • Do not prohibit removing an employee simply because a different employee was not removed for comparable conduct.
  • Do not require suspension of an employee before proposing to remove that employee.
  • When selecting a penalty, consider the employee’s disciplinary record and past work record, including all past misconduct — not only similar past misconduct.
  • Issue decisions on proposed misconduct removals within 15 business days of the end of the employee reply period.
  • Limit the written notice of adverse action to 30 days.
  • Use the adverse action (misconduct) removal procedures in appropriate cases to address instances of unacceptable performance.
  • Prioritize performance over length of service when determining which employees will be retained following a reduction in force.
  • Do not, in general, modify an employee’s official personnel records as part of the resolution of an employee’s complaint, grievance, or appeal.
  • Provide detailed reports periodically to OPM relative to removals, settlements, and disciplinary actions.

Steps 2 and 3, require agencies to rescind any of the above requirements in agency policies IF AND ONLY IF those policies were implemented because of the mandates of Trump EO 13839. Remember, there is nothing inherently illegal in these policies. In fact, they closely track well-established MSPB case law, Board decisions that acknowledge that agency managers have significant flexibility when disciplining and removing non-productive civil servants. If you had any of these policies in place before EO 13839 was issued, or developed these policies independently of EO 13839, then the Biden-EO does not require you to rescind them.

For example, if your agency independently decided to issue a policy that a DP generally should not exceed 30 days, you may keep it in place. President Biden isn’t saying that there’s anything wrong with a 30-day DP, just that a decision to implement a 30-day DP is not something that he thinks should be mandated by a Presidential order. He has said he does not believe in an “imperial Presidency.” The abolition of EO 13839 (and, in many ways, the parallel revocation of EOs 13836 and 13837) is a reflection of that style of management, allowing these decisions to be made by lower-level managers, not by mandate from the Big Kahuna himself.

Bottom Line: Saying that the Biden EO has restored “employee rights” to the civil service is a limited characterization. At least relative to EO 13839, President Biden has restored “management flexibilities” relative to decisions being made by agencies when dealing with poor performers and misbehaving employees. For example, under the Trump EO, an agency could not offer an employee a clean record in exchange for the employee withdrawing an appeal. Under the Biden EO, an agency can now offer a clean record in resolution of a complaint. It doesn’t HAVE to offer a clean record, but it can. Greater management flexibility can be a good thing.

On the other side, however, increased management flexibility can result in inexperienced managers exercising their flexibilities in ways that do not necessarily lead to an efficient and effective federal workforce. For example, we have it on good authority that one of the reasons that the Trump EO limited DPs to 30 days was because records show that some federal supervisors were initiating 90, 120, even 6-month DPs. President Biden has now restored the ability of agencies to return to such extended demonstration periods if agency policy-makers so choose.

Now that you have your flexibilities restored, you might want to consider coming to an FELTG seminar or two for help in deciding how to exercise those flexibilities legally. Based on the many years of experience possessed by just about every one of our instructors and speakers, we can show you what the law and case law is relative to all of these civil service management issues, guide you through the decision-making process while weighing risks and benefits, and even assist you in exercising the options that you were denied under the previous EOs.

We’ve never claimed that we should make agency decisions for you, but we do claim to know the legal parameters in which you can act. It’s a new day in the civil service. Take advantage of it while you can. Wiley@FELTG.com

How Much Information Does an Employee Have a Right to at the Proposal Stage?

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By Deb Hopkins and William Wiley, December 15, 2020

Here’s an email that recently came across the FELTG desk:

Dear FELTG,

Our agency has encountered an issue we haven’t seen, and were wondering if you might have some insight.

Typical for my agency’s chapter 43 removals is that the employee objects to not having access to their work documents, work laptop and programs, etc. (because they are put on admin/notice leave simultaneous with the issuance of the proposal) and thus isn’t able to offer a meaningful reply. We wonder if this is a common issue, and if perhaps there is an easy remedy that we’re overlooking.

Our proposals for chapter 43 removals include specific descriptions of each performance deficiency, with identifiers to specific instances (such as case numbers or project names and dates), but do not include or attach primary documents like screenshots or work files; the materials relied upon (outside of the proposal’s detailed description of the unacceptable performance) are usually the supervisor’s letter from the end of the opportunity period notifying the employee of the unacceptable performance, and if the timing lines up, the performance appraisal in which the supervisor rates the employee unacceptable.

So if an employee wanted to base their defense on individual case files, they would not have access to them through the materials relied upon; case files/documents/screengrabs aren’t provided with the proposal. We can’t anticipate every file an employee would want, so it’s hard to handle this prospectively, but options that have occurred to us are to (1) acknowledge in the decision that the employee objected to not having access, but did not actually identify or request any documents/files that would support a defense; or (2) when an employee objects to lack of access, the deciding official can ask the employee to identify what documents they need, and we can provide them and incorporate them into the materials relied upon. Option 1 may be risky (what if an administrative judge construes their objection to be a request that we failed to respond to?), but option 2 seems like it could delay the process and blow by mandated timelines.

What do you think? Is there a simple solution (or reassuring case) we’re missing, or a risk we’re misevaluating?

And here’s the FELTG response.

Well, we can’t give you specific advice on your situation, but we can speak to the principle in general. There’s a case we cover in MSPB Law Week (next offered virtually March 29 – April 2), that involves a misconduct removal but covers the same principle of access to documents during the notice period. In the event that an agency refuses to voluntarily make pertinent documents reasonably available prior to a Board proceeding, the Board’s rules provide for the issuance of orders compelling discovery by interrogatory or deposition, and for the issuance of subpoenas. See Kinsey v. USPS, 12 MSPR 503 (1982). This language “prior to a Board proceeding” assumes there is a Board appeal, which, of course, is not the case during the notice period.

The agency has no obligation, until the discovery phase, to produce any materials it did not directly rely upon in making the proposal. As long as the employee is given the material relied upon (and in a 432 action that’s entirely what happened during the performance demonstration period, PIP, or whatever your agency calls it now), the agency has fulfilled its obligation.

In another case we talk about during MSPB Law Week, the agency referenced shortcomings in medical care the employee provided to patients, but did not provide the employee the specific deficiencies or the records themselves that contained a description of the deficiencies. In reversing that removal, here’s what the Board said:

During the processing of the appeal, the appellant continued to express her confusion over the nature of the charge and attempted, without success, to  discover  the specific reason for her removal. For example, in “Appellant’s  Motion  to  Compel Production,” the appellant’s attorney stated that the appellant was “charged with failure to maintain her clinical privileges, which, so far as she can determine, calls into question the quality of care she has given to inmates for the undetermined period of time.”

In  “Appellant’s  Prehearing  Submissions,”  the  appellant’s  attorney  asserted  that       “there  is   complete lack of constitutional due  process” because the appellant “never knew prior to the time she was fired, nor does she know now, what acts of omissions on her part are the reasons for her termination nor what standard she fell below.” Alexander v. DoJ, DE–0752-97-0313-I-1 (1998).

The principle involved in situations like these is as old as the Constitution: “Fundamental due process requires that notice of charges against an employee be sufficiently detailed to provide a meaningful opportunity to be heard. In analyzing a claim of denial of due process, the Board will examine, among other things, whether the lack of specificity in the notice affected the appellant detrimentally or caused her any surprise during the hearing.” Mason v. Navy, 70 MSPR 584, 586-87 (1996). In your case, if the proposal said something like: “In case XYZ, you failed to attach an appendix,” then, in our opinion, that would satisfy due process. However, if it says something like: “In case XYZ, you did not conform with our SOP,” then that would not satisfy due process.

A basic way to look at which documents have to be provided is to ask the proposing official what he personally looked at in drafting the proposal. Did he look at a screen shot? If so, then the safest approach would be to include the screen shot along with the proposal. If he did not, then there’s no right for the employee to have access at this stage. The good news is that the employee is not entitled at the proposal/response stage to a fishing expedition to look for exculpatory documents or other evidence. That’s what he gets during discovery. Hopkins@FELTG.com

Precedential Fed Circuit Decision: Which Expert Determines If Employee is Unfit?

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By William Wiley, October 14, 2020

Last month, the Federal Circuit issued Ramirez v. DHS, No. 2019-1534 (Sept. 15, 2020), which dealt with the concept of an “unfit” termination.

What the court is calling an “unfit” termination is more precisely a “medical inability to perform” removal. This is a somewhat standard, though relatively infrequent, cause for firing someone from a government position. One can be unfit because he sustained an injury and can no longer physically do the work that’s assigned. Or, as charged in this case, the employee can be unfit for mental reasons. Although DHS chose the less common word “unfit,” the more classical term of “medical inability to perform” is commonly found in the case law. We can’t tell you exactly how often these are done relative to other 752 removals, because the Board does not parse them out, but they do not stand out as unusual by any means. FELTG has been teaching how to conduct these sorts of removals for several years now as part of our weeklong Absence, Leave Abuse & Medical Issues Week. [Editor’s note: Save the date! The next AMI Week will be held April 16-21, 2021.]

How do these compare to other types of 752 removals? The agency has to have preponderant proof that the employee is medically unable to perform, just as the agency would have to have preponderant evidence that the employee was absent from work, stole from the supply locker, or beat up a coworker. The agency must also follow the reasonable accommodation process to determine whether the employee can be reassigned to a position he can perform within his medical restrictions.

The main difference with these types of removals is that medical evaluations by health case “experts” often are more subjective in nature, and can easily be in conflict with each other, even when performed in good faith. That’s when arbitrators and judges have to resolve a battle of the experts and decide which conclusions seem to make the most sense based on the objective medical findings. As you can imagine, its exceedingly difficult to make these sorts of judicial determinations. The arbitrator is not trying to decide who is telling the “truth” as is his responsibility in routine misconduct cases, but whose medical judgment is most likely to be correct. Even highly trained medical experts cannot always agree on that.

In some ways, this makes it easier for the employee to defend himself in an unfit for duty removal as compared to a misconduct termination. If you fire me for theft and you have video of me stealing the laptop, there’s not much I can do to defend myself. However, if you fire me because of a subjective medical assessment of my behavior by your expert, I can relatively easily find my own expert who will view the same behavior and subjectively assess it as not warranting removal. Read the legendary Woebcke v. DHS for a mind-blowing subjective medical assessment.

The Ramirez case is categorized as a precedential ruling from the Federal Circuit, but it is new only in that it addresses the specific evidence derived from a third-party psychological exam relied on by the agency to fire an employee. The legal principle put into motion in making this assessment is as old as the hills. Our Constitution requires agencies to produce all the important evidence it relies on to fire a federal employee. The cases cited by the Federal Circuit are as foundational to civil service law as legal precedent can be, several going back to the early 70s and one even dated 1959. That’s how well-established this bedrock principle is.

Had the psychological exam (MMPI) been interpreted independent of the agency, I doubt that the court would have ordered its production by the agency for evaluation by the appellant’s expert. For example: If a state revokes an employee’s driver’s license, and the agency fires him because he needs a license to perform his job duties, it does not have to produce the evidence relied on by the state in revoking the license. It is free to accept the results of the state’s decision as an independent assessment. In comparison, the MMPI in this case was ordered by the agency. Therefore, it is agency-controlled and should have been produced as evidence relied on.

In my view, the agency had an obligation from the beginning to produce the evidence of the MMPI assessment. It caused the assessment to be done, it controlled who did the assessment, and the assessment was at the heart of the reason for firing the guy. Bottom line: The court’s holding is “new” in a very limited sense of the specifics, but the legal principle of due process that controls the outcome of this decision goes back to the second Magna Carta, the one issued in 1215. Wiley@FELTG.com