This One is Difficult to Report

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By William Wiley

As some of you might remember, late last year here at FELTG, we embarked on a mission we had never undertaken before. We decided to conduct a highly-scientific survey of all the attendees at our training programs to try to get an answer to what I think we would all agree is a highly pressing question:

Why don’t federal supervisors fire more bad employees?

The impetus for our doing this was in large part a response to all the negative press we civil servants have been receiving recently relative to accountability. It’s in the papers, on the evening news, and the subject of Congressional oversight committee meetings. Presidential candidates have campaigned about it. MSPB has dutifully reported the dismal numbers of successful removals and the extraordinary length of time it takes to make them happen. DVA and DoD have seriously looked into positioning their employees so that they would be outside of MSPB jurisdiction of removals, believing that the Board is the source of all the problems.

So we decided to survey you guys who are closest to the issue: you front line supervisors, union officials, human resource specialists, and agency legal counsel. Many of you see this stuff every day, and we thought it worthwhile that someone asks you what you think. Not that the opinions of the members of Congress are necessarily wrong. It’s just that we think we should find out the answer from the horse’s mouth (rather than some other horse body part).

Our survey was exceedingly simple. The single relevant question was phrased as follows:

Many people believe that agencies do not fire enough bad employees, that agencies should do more to hold employees accountable for conduct and performance. If you think this is probably true, how would you divide 100% of all the causes among the following categories?

Following the question, we provided a list of about a dozen possible causes. Things like:

______                        Lack of knowledge in the legal support staff

______                        Lack of knowledge by senior management

______                        Fear of reversal on appeal in human resources

______                        Fear of reversal on appeal in the legal support staff

______                        Desire not to hurt the employee by the front line supervisor

______                        Desire not to hurt the employee by senior management

The survey takers (and our many thanks to those of you who took the time to give us a response) were asked to divide 100% among as many categories as were relevant. Some participants went with two or three categories, maybe 30, 40, and 30%. Others went into much more detail, ascribing 3-10% to almost every category. Amazing how people respond to surveys.

Well, the results are in. After collecting about 700 responses, figuring out how to use Excel, and then crunching the numbers, we came up with clear winners. And, my goodness, were they clear. Of the 100 percentage points that could have been award, 78 of those points were split between just two categories, in order of responses:

  1. Lack of knowledge on the part of supervisors
  2. Lack of knowledge on the part of human resources specialists

So why are these results difficult for us to report? Because here at FELTG, we make our payroll each month by teaching supervisors and HR specialists (and attorneys and union representatives) how to hold employees accountable. It is clear that we have a big bias, and I wouldn’t blame a reader from thinking that our bias shows through. As my grandmother used to say, “Never ask a barber if you need a haircut.” An obvious corollary would be, “Never ask a training company if you need training.”

The best I can do is to tell you that we tried as hard as we could to be neutral. While I’ll concede that maybe the answers would have been different if we had asked this question outside of a training room, of individuals who were not actively participating in training at the time of the responses. However, we don’t have that luxury. We had to play the cards dealt to us, and classroom participants are who you dealt us.

Maybe our little survey will motivate those of you in a position to conduct your own survey, away from a classroom, to see what kind of answers you get. This is not a question that should be answered from a gut feeling. It should be answered based on facts, facts that are perhaps different from agency to agency.

But until that happens, our FELTG answer remains the answer to disprove. We put on our big-boy and big-girl pants, asked the tough question, and got an answer that makes sense to us. If you can do better, go for it. And if you’re a policy maker, until you get a better answer on your own, maybe you should consider throwing some resources into training your supervisors and your advisors. Because that’s what the most recent highly-scientific survey says you should do.

FELTG operators are standing by: 888-at-FELTG. Wiley@FELTG.com

We Gotta Have a Rule

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By William Wiley

Questions, we get wonderful questions here at FELTG. This one is from a somewhat frustrated practitioner that doubts that MSPB knows what “abuse of authority” really is. And it involves an area commonly misunderstood, right at the heart of our merit system.

Dear FELTG-

Here is a brief summary of what occurred in a case that recently went bad. I could use a little help in understanding why MSPB did what it did:

Appellant was the selecting official for the positions filled by the two applicants.  The vacant positions were not announced on the USAJOBS web site or otherwise publicly posted.  Appellant did not check to see if there were any qualified preference-eligible veterans who might be noncompetitively hired for the positions.  Instead, Appellant contacted the two applicants – and, only the two applicants – and encouraged them to apply for these unannounced and unposted positions.

Appellant knew the two applicants when they worked together previously.  The two applicants are not veterans and, at the time of their hiring, they had no prior or current federal service.  When appellant contacted one of the applicants, he told appellant that his application for a previous police officer vacancy with the agency, which was announced on the USAJOBS web site, had been rejected.  Appellant testified that he assumed that the applicant’s application for this previous vacancy had been rejected because he is not a veteran.

Appellant advised the two applicants to apply for the unannounced police officer positions using Schedule A and sent them an example of a Schedule A letter.  Schedule A is a noncompetitive hiring authority and only severely disabled individuals qualify for a Schedule A appointment.  Office of Personnel Management regulations, found at 5 C.F.R. § 213.3102(u), state that Schedule A appointments are reserved for individuals “with intellectual disabilities, severe physical disabilities, or psychiatric disabilities.”  This section defines the term “intellectual disabilities” to mean “only those disabilities that would have been encompassed by the term ‘mental retardation’ in previous iterations of this regulation and the associated Executive order.”  5 C.F.R. § 213.3102(u)(2).

After sending the two applicants example letters to qualify them as noncompetitive Schedule A applicants, appellant gave them further advice on their noncompetitive applications for the positions.  In a series of e-mails referenced in the initial decision, appellant reviewed one applicant’s resume and told him to remove appellant as a reference because it “wouldn’t look good and could be looked on as per-selection [sic].”  The applicant also told appellant in another series of e-mails that he had asked his treating physician to complete a Schedule A letter, but that his physician “didn’t feel comfortable saying I was disabled because my lung issue is a mild one.”  After the applicant asked appellant to “Let me know if there is a way around this, or if there is something else I can do,” appellant responded “I would get another doctor then. The only way in is with that letter.”  (emphasis added).

Appellant testified that in stating that the “only way in” is with a Schedule A letter, he knew that he could not hire the applicant without the Schedule A letter.  Appellant further testified that he knew that the applicant was not otherwise eligible for this unannounced vacancy because he is not a veteran.  As appellant directed, the applicant obtained a Schedule A letter, which was completed not by his treating physician, but by a physician at an urgent care facility.  The two applicants then provided appellant their resumes and completed Schedule A letters, and Appellant hand-delivered the documents to the Human Resources Specialist handling the hiring for these positions.  Appellant admitted hand-delivering the applications to the HR Specialist.  The Specialist testified that in his experience no supervisor other than appellant had ever handed him a Schedule A letter on behalf of an applicant.

Appellant told the Specialist, at the time he handed him the documents, that he would like the two applicants to be considered for these vacant positions.  Because appellant had not announced the positions, the Specialist testified that he understood that appellant wanted a non-competitive referral for the vacant police officer positions.  Appellant selected the two applicants  the same day he received the certificate and without interviewing them.

The Board states in the final decision “On petition for review, the appellant argues that the agency failed to show that there was anything improper about the assistance that he provided to [the applicants] and that it therefore failed to show that he abused his authority. We agree.”

What else would an agency need to prove to show favoritism, pre-selection, and, ultimately, an abuse of authority as a selecting official??

And our FELTG response:

Thanks for your patience on this one. Here’s what you’ve run up against.

As we teach in our MSPB Law Week (and UnCivil Servant on-site seminar for supervisors), an agency needs to satisfy five requirements to be able to take an adverse action:

The Five Elements of Discipline are –

  1. There is a rule (because we define misconduct as violation of a rule),
  2. The employee knows the rule,
  3. The employee broke the rule,
  4. The penalty is reasonable, and
  5. The agency provided the employee due process.

The agency got tripped up here at No. 1. There is no rule against favoritism or pre-selection in the civil service. I know, hard to believe. But this has been the context since I started in the 70s. In fact, the old Civil Service Commission even had a point paper it circulated back then that said that pre-selecting individuals who were especially trained and favored by the selecting official for the purpose of affirmative action was completely in line with the merit system AS LONG AS the eventual selectee was qualified on merit for the position.

That’s the danger of taking an adverse action without having a black-and-white rule we can point to. Without a rule, we have to fall back on what the employee should have known the rule to be, and then we get into this vague, undefined, never-never land of what the employee believes, what the Board believes, and what we as management believe.

So you and I might agree that pre-selection is bad. But this supervisor has never been told that. Separately, there’s no case law to support a presumption that pre-selection is bad, and especially important is that there are no federal laws or regulations that specifically outlaw preselection. Therefore, we’ve failed to satisfy Element One and we are doomed.

DVA could make a rule that prohibits preselection and favoritism. If it did, then it could hold employees accountable for violating that rule, and thereby abusing their federal authority. But it has not. Therefore, in part because it has always taken this position, MSPB held that preselection is not inherently a violation of a rule, and cannot be the basis for discipline.

Hope this helps for the next time. Wiley@FELTG.com

MSPB’s Statistics for 2015

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By William Wiley

The Board published its annual summary of cases decided a couple of months ago. Normally, I dig into those win/loss tables with glee, separating the agencies who won most of their appeals from the pitiful losers who are wasting the government’s money. Yes, we are not happy here at FELTG unless we are pointing out where someone else made a mistake.

Unfortunately, in this report, there was no joy in Mudville. That’s because most of the agency-specific data mixed furlough appeals with other adverse actions such as removals. And as there were many, many furlough appeals, with agency success rates hovering in the 99% range, we really couldn’t tell which agencies were doing a good job of holding employee’s accountable for misconduct, and which ones were not. So no opportunity for us to write a snarky finger-pointing article about the Biggest Loser agencies for 2015. Poop.

However, the report did give us some across-the-board numbers of interest to those of us who care about federal employment law, numbers that exclude the anomaly of all those furlough appeals. When we use that filter to look primarily at removals, here’s what we find:

  • 80% is a repeating statistic. In non-furlough removals, MSPB upheld the agency’s action in 80% of the cases in which a decision was issued. Similarly, the Board members agreed with their judges’ outcomes in 80% of appeals in which there was a petition for review filed. As you’ve read in this newspaper, FELTG takes the position that after 40 years of learning this law, the Board should be upholding agency removals close to 100% of the time. Federal agencies should not be making critical mistakes in one out of five dismissal actions.
  • Half of 80% is 40%. And that’s the share of MSPB’s non-furlough case load devoted to reviewing removals (and a few long suspensions and demotions) for misconduct.
  • About 10% of the Board’s caseload is devoted to protecting veterans rights (USERRA/VEOA) and another 10% of the caseload is devoted to protecting whistleblower rights (IRA). You readers who are purists recognize that I’m doing some generalization here, but I know that you’ll cut me some slack as the point here is relativeness, not specificity.
  • 60% of all initial appeals settled, a statistic that is steady year in and year out. That’s why, among other reasons, here at FELTG we’ve decided to offer an open-enrollment seminar in the fall specifically to teach settlement options and skills. We may think of ourselves as litigators, but the numbers say that we actually are more likely to be deal-makers.

The above is relatively typical for MSPB, with no great surprises in the statistics. However, there are a few findings that are worth an extra degree of thought:

  • 5% of the Board’s non-furlough caseload last year was probationary terminations. Even though the appeal rights of terminated probationers is severely limited, smart agencies will have documented for the record why the employee was released during probation. You don’t need much in the way of post-employment misconduct/performance procedures to terminate a probationer, but you still will want to have a legitimate reason documented in the file, both for the possible MSPB challenge as well as the inevitable EEO complaint.
  • Only 2% of the Board’s decisions resulted in mitigation of the penalty. With all the whining many of us do about comparator employees and judges making management penalty decisions, you’d think that number would be higher. Well, it’s not.
  • 3% of the caseload in 2015 was appeals of unacceptable performance removals under 5 USC 432. This lowly statistic has been relatively steady for maybe 20 years. With the frustration shown by Congress and certain members of the public directed toward “bad civil servants who can’t be fired,” one might think that this number should be higher, mightn’t one.

The big number for MSPB last year was the overall production rate. The Board issued over 28,000 decisions including all those furlough appeals. That’s a higher volume than produced by MSPB since the appeals of all those striking PATCO employees back in the early 80s. Once more, the good people who work at the Board hunkered down and dispensed justice both expediently and (usually) fairly. We may not agree with all their opinions and procedural quirks, but we have to admit: they know how to do what they’re being paid to do. Wiley@FELTG.com

MSPB Fails to Understand Its Role in Adjudication

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By William Wiley

Once again, I willingly choose to engage in the crime of lèse-majesté. Consider the following exchange:

Bill:         Hey, Deb, how did you get to work today?

Deb:        Well, I drove my Ford, as usual.

Bill:         You’re lying. I saw you driving a truck.

Deb:        I wasn’t lying. I drove a Ford like I said; it just happened to be a truck.

Bill:         No, when you said a “Ford,” I decided that you really meant to say “car.” When I saw that you weren’t driving a car, I concluded that you were lying.

Doesn’t seem quite fair, does it. Deb said one thing; Bill re-characterized it as something else; then Bill decided that Deb was lying about the something else. It would seem that a person should be held accountable for doing what she says, not what someone else thinks she meant when she said it.

And that’s exactly what the Board said about 20 years ago in Otero v. USPS, 73 MSPR 198 (1997). In that seminal opinion, the judge had re-characterized the agency’s charge into something he thought better fit the circumstances, and then found that the re-characterization was not proven.  In its wisdom, the Board said the judge was wrong to re-characterize. Noting that 5 USC Chapter 75 states that the agency must tell the employee the “reasons” for the removal, and that the narrative paragraph the agency used states facts that are a statutory “reason,” the Members faulted the judge for the re-characterization and reversed his logic as unsound. That rationale is very much like the rationale that leads to the conclusion that Bill’s logic is unsound and unfair when he says that when Deb said “Ford,” she meant to say “car.”

Unfortunately, the Board appears to have reverted to the pre-Otero unfair way of doing things. Here was the charge and some samples of the specifications in a recent removal, O’Lague v. DVA, 2016 MSPB 20:

Charge: Inappropriate Conduct

Specification 1:  On 4 February 2015, you recorded in the VA Police Daily Operations Journal (VAP DOJ) that, at 0330 hours, you conducted a vehicle patrol of all parking lots, roads and grounds. However, Officer Bright testified that he and Officer Brad Huffman-Parent had possession of the keys for both VA Police vehicles at that time and you could not possibly have conducted such a patrol.

Specification 2:  On 4 February 2015, you recorded in the VAP DOJ that, at 0358 hours, you conducted a vehicle patrol of all parking lots and roads. However, Officer Bright testified that he and Officer Brad Huffman-Parent had possession of the keys for both VA Police vehicles at that time and you could not possibly have conducted such a patrol.

Specification 3:  On 4 February 2015, you recorded in the VAP DOJ that, at 0600 hours, you conducted a vehicle patrol of all parking lots, roads and grounds. However, Officer Bright testified that he and Officer Brad Huffman-Parent had possession of the keys for both VA Police vehicles at that time and you could not possibly have conducted such patrol.

On appeal, the judge, then the Board, concluded that these seven specifications actually were charges of “making false statements” EVEN THOUGH THERE ISN’T A SINGLE FREAKING “F” WORD IN SIX OF THE SPECIFICATIONS! And once that unjustified leap of conclusion-drawing is made, the agency was held accountable for not only proving the facts (the “reasons”) in the specifications, but also the elements of a Falsification charge:

    1. That there was false information,
    2. Knowingly provided,
    3. With the intent to deceive the agency, and
    4. For personal gain.

Hey, Board. If DVA had wanted to charge “Falsification,” it knows how to charge “Falsification.” It clearly did not intend to charge falsification because it labeled the misconduct with the generic charge of “Inappropriate Conduct” followed by specific factual statements as to what the employee did that was inappropriate, as clearly allowed for in Otero.  The Board is required to review the agency’s decision on an adverse action solely on the grounds invoked by the agency; the Board may not substitute what it considers to be a more adequate or proper basis. Gottlieb v. DVA, 39 MSPR 606 (1989). With all due respect, you are not in the charging business.

While I’m on a roll lecturing the Board, would you guys please stop talking like a bunch of lawyers who fell asleep during the Plain English class? How about “reasonable” instead of “did not exceed the bounds of reasonableness,” “serious” instead of “nonfrivolous,” and “lied” instead of “not credible”? We’re about to get a new President, and it may be someone who prefers simple words. Make America strong again by using plain English.

Some might say that since the Board eventually upheld the charges in O’Langue, no-harm no-foul. Well, those some would be wrong. This is an ugly road for the Board to go down. MSPB’s role in this business is and always has been to adjudicate the charges brought by agencies, not to come up with charges on its own, and then decide whether they have been proven. Agencies should live and die by their characterization of the charge.  MSPB has long held that an agency is bound to prove what it charged, not what it could have charged (e.g., charge “Theft” and you’d darned sure better have proof of an element of permanent deprivation because the Board will not re-characterize your charge to some lesser charge such as “Unauthorized Removal”). The Board is out of line when it labels acts of misconduct differently from what the agency labeled them, thereby retroactively changing the agency’s proof burden after the removal is taken. You can’t change the rules after the game has been played (unless, of course, you’re running a political convention).

By the way, if an agency charges “Inappropriate Conduct” and the Board on appeal re-characterizes the charge into “Falsification,” has the Board not violated the employee’s right to due process? MSPB sure beats up on Deciding Officials who testify on appeal to regarding a charge that was not noticed. Does not the same logic apply when the Board comes up with a new non-noticed charge? Hmmm.

In O’Lague, DVA said the employee was driving a Ford. The Board said that the agency was wrong, that a Ford is not a truck. And the Board is thereby driving me freaking crazy. Wiley@FELTG.com

Preponderance of Evidence Revisited

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By William Wiley

We’ve all been frustrated at one time or another with the help (or non-help) we’ve received from an unfriendly Information Technology specialist, some of which live half-way around the globe. Did you ever slam down the phone and wish you could just fire them? Well then, you’ll be interested in the following evidence in a removal of a close-by IT specialist for discourteous behavior, an employee who had previously been suspended for 7 days (for similar discourtesy), then 14 days for failing to follow orders.

Specification Proof In Support of Proof Against Board Ruling
1.1. Appellant called a customer a jerk. Customer testified that appellant said he was “acting like a jerk” or “words to that effect.” Appellant denied using the word ‘jerk.” The customer’s testimony was equivocal. Although customer’s testimony that appellant was “rude” was not equivocal, that was not the charge. NOT SUSTAINED.
1.2. Appellant was loud and discourteous to a customer, a senior agency manager. Customer testified that appellant was loud, belligerent, used hand gestures, leaned forward, and conveyed an attitude she was unwilling to provide assistance. Appellant denied being discourteous or loud. Although perhaps unpleasant, it is debatable whether appellant’s behavior rose to the level of discourteous. NOT SUSTAINED.
2.2. Appellant got in the face of a coworker with a customer and said animatedly, “Are you monitoring me now, too?” The coworker testified that the interaction occurred as charged. There were tensions in the workplace. Tensions go to penalty, not to whether misconduct occurred. SUSTAINED.
2.3. Appellant was routinely discourteous, talked bad about other elements of the organization, was a bully that liked to intimidate others, and treated people in a humiliating manner. A customer stated the facts in the charge in a sworn statement. The interactions were confrontational, based on organizational friction, but not discourteous. As there was no testimony or other evidence to support these generalized accusations, NOT SUSTAINED.
2.5. Appellant was rude and disrespectful toward her former supervisor by yelling at him across a parking lot, “Don’t you ever come into my workplace again.” The former supervisor stated the facts in the charge in a sworn statement. Appellant denied yelling or making the statement in the specification. Live testimony trumps a sworn written statement. NOT SUSTAINED.

Agencies don’t often lose MSPB appeals because of a failure to prove specifications. Usually, agency losses can be attributed not to a lack of charge proof, but to a procedural screw-up: due process violation, poorly drafted charge, weak Douglas analysis. This case is an exception because most of the specifications failed completely. Of the original three charges each with up to seven specifications, the Board sustained only one specification and mitigated the removal to a five-day suspension. Ballard-Collins v. Army, SF-0752-13-0617-I-1 (2016)(NP).

As for the Board’s evidentiary findings, we’ll leave it up to you to decide whether you think the agency proved by a preponderance of the evidence (more likely than not) that the appellant was discourteous. The evidence is a classic he-said/she-said. For each specification considered on PFR, the appellant simply denied the charge, and a customer or co-worker supported the charge by sworn testimony or affidavit. In all but one specification, the Board decided to believe the appellant, not the agency witnesses.

As for us practitioners, there are a few basic takeaways worthy of note:

  1. The agency should not have relied on written statements as proof in the face of the appellant’s contrary live testimony. Almost every time, the Board will believe in-person sworn testimony over written affidavits.
  2. SPECIFICITY! We’ve taught for 15 years that charges and specifications need to be short and specific. Generalized charges hardly ever withstand Board review. Don’t use them.
  3. Charge what you can prove. If you can prove rude behavior, charge rude behavior. Don’t try to prove “discourtesy” by submitting evidence of “rudeness.” The Board is a nit-picky old bitty when it comes to the wording of a specification.

Some readers will, no doubt, conclude that the Board made a mistake in the weighing of the evidence. Our reality is that we cannot always be sure of how a judge will evaluate our attempt to prove the charges. However, there are strategic steps we can take to put our case in the best light possible. Understanding and using some of the basic principles of Board practice gives us a better chance of walking away with a winner at the end of an appeal. No guarantees, just an improvement in the odds. Wiley@FELTG.com

FELTG Once Again Leaps to Defend MSPB

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By William Wiley

And the truth shall set you free.

Yes, here at FELTG, we’ve been known, on occasion, to whack old MSPB upside the head when the Board issues some lame-brain decision that undermines the ability of agencies to run an effective government (or causes employee rights to be violated).  This week, however, we feel the need for speed, to point out when the Board has been unfairly attacked and its decisions mischaracterized by people who should know better.

Last week, at least a dozen different news organizations (and I use that term loosely), reported that MSPB was being berated for reversing a removal that was discussed in recent testimony before the House Committee on Oversight and Government Reform. According to those reports, the testimony on the Hill by Acting EPA Deputy Administrator Stanley Meiburg and by Assistant Inspector General  for Investigations Patrick Sullivan described the reversal by the Board of a removal of an EPA employee who:

  • Was a registered sex offender,
  • Was a convicted child molester who imitated a police officer, and
  • Who kept child pornography on his computer.

According to reports, after being told by Deputy Administrator Meiburg  that when EPA fired this employee, MSPB found the “basis for the removal was not sustained,” Chairman Chaffetz exclaimed,

“How do you lose that case? It’s just pretty stunning. How do we need to change the Merit Systems Protection Board? Because what’s not happening is we’re not protecting the American people and the taxpayers, and we’re not protecting the employees that have to sit by this freak of a pervert.”

Well, speaking of perversion, take a look at what the “real” facts are in this case. Yes, EPA fired this guy. And, yes, the Board reversed the removal.  It just sounds horrible that a child molesting, police officer imitating, registered sex offender cannot be fired from government because of the nasty US Merit Systems Protection Board. News reports like this make all of us civil servants (current and retired) look bad in the eyes of the public. No wonder that Congress is jumping up and down – as have a number of recent candidates for the Presidency and current agency heads  – about changes that should be made to gut the civil service system. There’s legislation afoot that would remove significantly large groups of civil servants from the protections of Title V, just so that the evil MSPB cannot get its hooks into a removal appeal and reinstate a non-deserving employee into the federal government.

So why did the Board order the reinstatement of a child molester to the civil service? Did it think that child molesting is not such a big deal? Did it say that the government is a good place for registered sex offenders to be? That’s sure what all the hullaballoo on Capitol Hill sounds like.

No, the Board ordered the removal to be set aside because the agency did not prove the charge: AWOL.

That’s right. This guy was not charged with child molesting, impersonating a police officer, or having child pornography on a government computer. He was charged with AWOL. And the Board set aside the AWOL charge because the agency failed to satisfy the requirements of a lead decision from 1981, a 35-year-old precedent (which, frankly, I don’t like, but the law is the law; see Pearson v. Navy, 8 MSPR 405 (1981)).

I leave it to others to conjure why two top agency officials would testify before Congress in a manner that resulted in the Committee Chairman concluding that MSPB was the bad guy in this scenario. Did they not tell Congress that the removal was reversed for a reason unrelated to this employee’s status as a sex offender? Did they not know that? Or, did they actually make that point, but the committee members accidentally heard something else? Did no one stop to think that the basis for the reversed removal was relevant?

Sometimes Board decisions deserve to be held up to the bright light of public ridicule. But this case is not one of them. Instead, in this situation perhaps that bright light needs to pointed somewhere else. Wiley@FELTG.com

BIG NEWS: Title 42 Employees Now Entitled to Appeal Removals to MSPB

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By William Wiley

OK, it’s BIG NEWS if you have any employees hired under the authority of Title 42 (rather than under Title 5), the authority that allows agencies to appoint special consultants without regard to any civil service laws. 42 USC 209(f). Since the cooling of the Earth, the Board and OPM have concluded that this language means that a Title 42 employee is without civil service protections and may be removed summarily without Board appeal rights.

Well, no more. As of Wednesday last week, if an agency fires a Title 42 employee, that employee gets to file an appeal with MSPB, just as would a regular Title 5 employee who has more than a year of service. Lal v. MSPB, Fed. Cir. 2015-3140 (May 11, 2016). And as we read 5 USC Chapter 75 (adverse action procedures) and 5 USC Chapter 43 (unacceptable performance procedures), agencies will be required to use those procedures to effectuate a Title 42 removal. OPM has room for a say as to the coverage of Chapter 43 for Title 42 into the future, but as their regulations are currently written, our best legal guess is that there’s coverage unless there’s a regulatory change.

The court’s reason in large part was straight out of Law School 1-A. Title 42 says that individuals may be “appointed” under Title 42 without regard to the civil service laws. A different statute gives agencies in another context when dealing with certain non-Title 42 employees the authority to “appoint[ ]…and remove[ ]… without regard to the provisions of title 5…” Reasoning that Congress saw a significance in the latter situation to include the authority “to remove” and that Congress did not specifically include the authority “to remove” in Title 42, Congress did not intend for Title 42 removal authority to be without regard for civil service protections.

Most Title 42 employees work in HHS, with a few scattered among other agencies (e.g., EPA). Therefore, most of the civil service is unaffected by this decision. However, for those readers who employ Title 42 employees, it is a new day. Whether it is a bright new day or a dark one, we leave that up to you to decide.

Here at FELTG, we teach supervisors how to hold Title 42 employees accountable for their performance and conduct just as we teach how to do that for Title 5 employees. We hope you’ll consider us if you now feel you would benefit from a little procedural education. Wiley@FELTG.com

Prior Discipline Continues to Lose Respect at the Board

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By William Wiley

My initial training in this business was in July 1977. Back in the day, the old Civil Service Commission ran weekly academies year-round in Washington, DC, with an academy devoted to each major personnel discipline: classification, staffing, training, labor relations, and employee relations. To practice independently in your chosen field, by CSC policy, you had to attend the academy and pass the final test for your discipline. If you attended and did not pass the final exam, you were sent home without the ability to work independently, and had to return to retake the program at a later date. Serious stuff.

One of the principles I remember clearly being taught in my employee relations academy was that of progressive discipline. Although not mandatory, employing progressive discipline was presented to us as a way to give an employee a fair chance to prove whether she could obey rules and pull her weight as a federal civil servant. And if she could not, progressive discipline laid a good foundation to show that the agency had been fair to the employee, and that the employee continued to be a problem.

The concept of progressive discipline is exceedingly simple: first offense = reprimand, second offense = suspension, and third offense = removal. Of course, there was room for an agency to decide to do something less, but that would be up to the agency’s discretion. The philosophy of progressive discipline was to initially use a warning (a reprimand) to try to correct the employee’s behavior. If the employee engaged in a subsequent act of misconduct, he was demonstrating that the reprimand did not work, because if it had worked, he would have obeyed the rules and not have engaged in more misconduct. As the reprimand didn’t work, the supervisor was empowered to move up to more serious discipline in an attempt to correct behavior, and that’s where the suspension became an appropriate penalty – a negative reinforcement of taking away pay to motivate rule-obeying conduct.

Then finally, if the employee engaged in yet another act of misconduct subsequent to the suspension, with rare exception, the last stage of discipline was removal. By engaging in a third act of misconduct, the employee was demonstrating that a suspension was inadequate to correct the bad behavior. If a reprimand didn’t work and a suspension didn’t work, the only option left was a removal. As I remember one instructor putting it so eloquently, “The government does not have to retain in its employment an individual who does not respond to discipline.”

And to me, that makes perfect sense if we think of discipline not as punishment for the sake of punishment, but as a tool for correcting behavior. If it doesn’t satisfy the objective of correcting behavior, then the non-responsive employee can go work elsewhere. The civil service deserves rule obey-ers, not rule breakers. That philosophy explains why agency penalty tables list only three offenses. Because in most cases, by the third offense the employee has demonstrated an inability to be corrected, and won’t remain employed any longer where he would get a chance to commit a fourth or fifth offense.

Unfortunately, today’s MSPB didn’t attend that academy. As far as I can tell, the Board expects an agency to tolerate indefinitely an employee who does not respond to discipline. If not indefinitely, it hasn’t given us any clear signs as to when enough is enough. Take, for example, MSPB’s recent decision in Ballard-Collins v. Navy, SF-0752-13-0617-I-1 (2016)(NP). In that case, the appellant three years previously had been suspended for 7 days, then later that same year, had been suspended for 14 days for subsequent misconduct. You would think that by those two actions, the employee would have been given a fair chance to learn that misconduct would not be tolerated; i.e., to correct her behavior.

Well, you would be mistaken. Even after these two suspensions the appellant committed yet another offense (disrespectful conduct) and was fired. On appeal, although the Board characterized the disrespectful conduct as a serious offense – particularly so because the appellant was a team leader – it mitigated the agency’s removal to a five-day suspension.

No kidding. Even though the appellant had demonstrated that suspensions don’t work on her to get her to correct her behavior, even after losing 7 and 14 days of pay as negative reinforcement, MSPB somehow reached the conclusion that maybe a 5-day suspension would get the employee to obey the agency’s rules.

Well, that’s just crazy; crazy IF you believe that an agency should not have to tolerate a rule breaker. You see, suspending the employee hurts the agency as it does the employee. The employee loses pay, and the agency loses the services of the employee for the duration of the suspension. The old Civil Service Commission gave us an end to this problem by teaching that ours is a three-strike game. The Board, on the other hand, gives us no clear guidance, effectively saying that an agency may have to tolerate a misbehaving employee indefinitely, suspending over and over again, regardless of the lack of effectiveness of the suspensions to correct behavior and the loss of productivity the agency suffers.

You want more crazy? I got more crazy. When coming up with a 5-day suspension, MSPB used this reasoning:

  1. The prior 7-day suspension was for discourtesy. The prior 14-day suspension was for failure to follow instructions.
  2. This last act of misconduct was properly characterized as discourtesy. Therefore, we have a second act of discourtesy.
  3. The agency’s penalty table provides for a range of penalty for a second offense of discourtesy to be a one to five day suspension. Therefore, a five day suspension is warranted.

Notice how the Board ignored two critical aspects of this “second offense”:

  • The agency issued a seven-day suspension for a first offense of discourtesy. One would think a second offense of something warrants more severe discipline than that administered for a first offense.
  • The Board COMPLETELY IGNORED the fact that in addition to the prior suspension for discourtesy, the employee had been suspended for 14 days for failure to follow instructions. It’s as if the Board is saying that when we consider prior discipline, we are to consider only prior discipline for misconduct in the same category as the most recent misconduct. Well, that’s just ridiculous. If we go down that dark road, an employee would have to be disciplined progressively for each category of misconduct. In a typical penalty table, that would be dozens and dozens of categories. Expecting progressive discipline in each of them could add up to double that many of suspensions before we had finally plugged all the holes and were able to eventually fire the multitasking bad employee.

Ask yourself this philosophical, but critical, question: Which of the following makes for a better government?

  1. A civil service in which employees who do not conform their behavior to agency rules after two formal attempts at correction normally can be removed.
  2. A civil service in which employees who commit acts of misconduct can retain employment indefinitely regardless of the number of attempts at correction as long as each act of misconduct is of a different nature from the other.

This break from the old school three-strikes-and-you’re-out approach defies common sense and leaves us without any framework in which to assess whether prior discipline carries any weight when selecting a penalty for a particular current act of misconduct. This is exactly the kind of decision that makes it appear that the Board is overly protecting employees at the expense of an efficient, orderly, civil service discipline system. This was a third offense. The agency had administered two significant prior suspensions. The idea that only a five-day suspension is warranted as a maximum reasonable penalty now is unreasonable and strikes at the heart of the concept of federal employee accountability. Wiley@FELTG.com

Attorneys Should not Make Management Decisions

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By William Wiley

Here at FELTG, we do a LOT of training for supervisors. We really enjoy helping front line managers learn the procedures the law provides for dealing with poor performers and civil servants who don’t follow the rules. And during those sessions, we hear a LOT about what supervisors think about their legal and human resources support staffs.

One of the more common comments we get, and perhaps the most infuriating, is this: “Bill, I’d like to do it that way, by my solicitor won’t let me.” Man, oh man, does that comment make us cringe. With rare exception – and I mean really rare exception – the authority to hold agency employees accountable is delegated to the line managers who have been hired to run the place, not to the lawyers who are responsible for providing advice. Where do lawyers (or human resources specialists) get off telling line managers what to do when it comes to initiating discipline and performance removals?

Perhaps it started in law school, when the attorney-in-training took all those management classes.

Ha, ha, ha. That’s a little joke. Nary a law school in the country requires that its students take courses in how to manage a federal agency. OPM doesn’t have any minimum training requirements for staff attorneys to take management classes once hired into government. So your typical agency attorney, though perhaps highly competent in the skills necessary to be a lawyer, has zilch formal education in the science of management.

Well, maybe those skills necessary to be a highly competent attorney are easily transferrable to the field of agency management. Perhaps whatever it takes to be a good lawyer is also what it takes to be a business manager.

No, they aren’t. In fact, the skills necessary to be a good lawyer are sometimes antithetical to what it takes to be a good manager. Take risk-avoidance for example.  Lawyers are trained to do whatever it takes to reduce the risk involved in an action, to consider every possible bad outcome, no matter how remote, and to include language in the contract or argument in the brief to cover that possibility. In the world of federal employment law, that means a lawyer would be likely to want to avoid the possibility of losing an appeal, even if that possibility was slight.

In the business world, hesitation can cost a company a lost opportunity. Nobody wants to lose, but risk of loss in the management of an agency is sometimes worth the benefit of the gain that can result from success. When I was a baby in this business back in the ‘70s, I remember trying to talk a Navy commanding officer into settling an appeal because if we were to lose, it might cost the Navy “over ten thousand dollars.” He gave me one of those over-the-spectacle looks that seasoned people give to newbies and said, “Young man [I knew I was about to be put in my place when he started off with that], last month I spilled $30,000 worth of fuel refueling my jets. Do you really think that I care about another ten grand?” He was making a business decision for which I did not have a perspective. And that’s exactly what he was supposed to do.

Last year, I was lassoed during a break in one of our open-enrollment seminars by an attorney who worked in an agency for which FELTG recently had been doing a lot of onsite supervisory training. She was upset that we were teaching her agency’s supervisors what accountability options were available without considering “the culture” of the agency. In other words, we were telling supervisors what they could do, and her office (the Office of Culture, I’m guessing) didn’t want them to know what they had the authority to do.

On another occasion when I was speaking to a group of agency attorneys in an onsite course for an agency, I stressed (as I always do) how important it is to get the employee out of the workplace once a removal has been proposed. One of the attorneys in the group promptly informed me that “We don’t do that here” because “it would look bad in the papers” to have an employee on administrative leave during the 30-day notice period. She was making her decision on what “we do” based on her view as an attorney safely ensconced down the hall in her office behind a locked door. The poor line manager, who should by all rights be making the decision, would be the one sitting around the corner from the about-to-be-terminated employee, directly in the line of fire, should the employee snap and become violent.

Line managers should be making line management decisions, not agency attorneys and human resources specialists. Our job is to provide advice and counsel, not to direct and tell. The concept of “HR won’t let me do that” should disappear from the workplace. We are a service entity, not a line component. If we are advising a line manager who wants to do something we think to be bad for the agency, our job is to run that issue up the chain of command of that manager, not to interject our own style of management into our client.  And I stress the word “client” as that should be the nature of our relationship with the manager.

Think of yourself in private practice. How much income do you think you would have if business people came to you for your legal counsel and you instead took it on yourself to tell them how to run their business and how to make business decisions? If you want to decide what “we do” around here or what “the culture” should be, start a business and become accountable for your decisions. Until then, if you are an agency advisor – attorney or otherwise – do America a favor. Fulfill your consultant role to the best of your ability and allow line managers to make the decisions that are their role to fulfill.

Take it from someone who has been on both sides. It’s easy to tell someone what they cannot do. It’s much harder and more important to help them do what they’ve decided to do. Wiley@FELTG.com

What is the Role of the Union Official in Statutorily-Defined Meetings?

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By William Wiley

Questions, we get wonderful questions here at FELTG. And the one below from a well-respected senior practitioner raises a couple of issues of importance to all you unionized readers out there: the difference in union rights between a formal discussion and a Weingarten investigation. The FELTG responses to the questions are in bold.

Dear Beloved FELTG-

This whole business of representation at investigatory examinations has me utterly confused. For a long time – and please correct me – I’ve distinguished between formal and investigatory meetings by telling folks this: Union representation in formal meetings flows from the Union; Union representation in investigative examinations flows from the employee.

That is, in formal meetings the agency gives the Union a “heads up” (prior notification) and a chance to attend.

In investigatory meetings, 7114(a)(2)(B)(ii) places the burden of exclusive representation on the employee, not the union.  That’s how I’ve always read the statute.  So I’ve told supervisors and investigators long ago if the employee does not request, no need to notify the union.  Q:  Was (or am) I right? Yes.

Folks who tell me a Union is entitled to representation in investigatory meetings without the employee’s request or permission drive me crazy. They are wrong. There is no authority for that position. But I’m more than willing to grant my ignorance of case law on this matter.   But why does the Statute distinguish between the two if there were no difference? There IS a difference.  In formal meetings, the employee has no reasonable belief he might suffer discipline (might be irrational belief).  In investigatory interviews, the employee may well reasonably believe, “Uh oh, this may not turn out well for me…”

I’m told the Authority gives great latitude to the “reasonable belief” clause Correcto, even granting representation when the employee has no reasonable belief personally.  But this does not speak to the exclusive representative’s alleged institutional right to attend uninvited to an investigatory examination.  There is no institutional right for the union to attend an investigatory interview.

In its “Guidance on Meetings,” the Authority cites the high court’s justification for representation by the following rationale:

The Court also reasoned that by attending the interview, the exclusive representative

“protects the ‘interests of the entire bargaining unit’” and is “able to exercise ‘vigilance

to make certain that the employer does not initiate or continue a practice of imposing

punishment unjustly.’” (Guidance, 17-18)

This language tells me the union has an institutional interest in attending an investigatory examination FLRA has never reached this conclusion. Note the “also” in the statement. That indicates that this is a secondary purpose of the Weingarten right, separate from the primary purpose of allaying fears the employee might have, not solely to protect the interest of the employee under investigation.  Hence, it has a right to attend even if the employee does not request? No, there is no case law that says that, and the statute specifically requires an employee REQUEST: “and requests representation.” 5 USC § 7114(a)(2)(B).

The Weingarten decision from the Supreme Court itself states, “The right arises only in situations where the employee requests representation. In other words, the employee may forgo his guaranteed right and, if he prefers, participate in an interview unaccompanied by his union representative.” 420 US 251, 257 (1975). If the Supremes say that the employee can participate in the interview without the union, that’s good enough for me. There simply is no separate union right to be present independent of the employee’s request, although if the employee requests union representation, such representation provides the secondary benefit of the union protecting the interest of the BU.

In clarifying 7114(a)(2)(B)(ii), the Authority does not address my burning Q of whether the exclusive representative can attend uninvited or even at the expressed opposition of the employee (pp 20-1).  Put out the fire. The union has no right to attend without the employee invoking Weingarten.

Q:  So is it a violation of the statute if the agency honors the employee’s silence or tells the agency (even the Union) he does not want representation? No. Absolutely not. If there were such a union right, we would have a case on point by now. We do not.  Is it a ULP to exclude the exclusive representative from the investigative interview? We don’t exclude the union because the union has no right to be there. Exclusion comes only if there is a commensurate right to be present (e.g., once the employee invokes his right to a union rep in an investigatory meeting, the union has a right to be represented by whoever it chooses.) Therefore, if management were to exclude the chosen union rep, that would be a ULP; e.g., FCI Englewood, 54 FLRA No. 133 (1998).

And additionally, suppose the employee wants his own representative (attorney or not) not affiliated to the union or not approved by the union? The employee can want chocolate cake for breakfast. However, there is no right to it. If the agency decides to allow him a rep even though there is no entitlement, the employee can choose whoever he wants, whoever is willing to do it, and whoever the agency will allow.  What then?  Must the representative be necessarily approved by the exclusive representative? No, because the primary purpose of Weingarten is to provide protection to the employee, not to benefit the union.

As always, we hope this helps. Wiley@FELTG.com