Robbins in Two Roles is Fascinating, but Is It a Potential Conflict?

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By William Wiley, January 23, 2019

While everybody was focused on the shutdown and the holidays, there was a fascinating, and frankly head-scratching, development involving MSPB Acting Chairman Mark Robbins. On December 21, 2018, OPM’s Acting Director Margaret Weichert announced that Mark Robbins will serve as the new General Counsel for OPM. This in itself was not a shock. Robbins previously served as OPM General Counsel from 2001-2006, and it was expected that he’d return there once his MSPB tenure ended in March. However, Weichert’s announcement coincided with President Trump’s memorandum directing Robbins to serve concurrently as OPM General Counsel and Acting Chairman of the MSPB.

I cannot understand the rationale. Maybe there’s some need within OPM for there to be a Presidentially appointed General Counsel and Robbins was moved in earlier than he would be otherwise. I see no benefit to doing this from what I know historically. Is there a conflict created by holding these two positions?

As we all know, the MSPB has been without a quorum for over two years. With Robbins as the only current member, the Board has been unable to issue any decisions. However, recent news articles have reported that Robbins has been voting on cases. That is, he’s expressing his opinion as to whether the judge’s decision should be affirmed or modified. As a practical matter, that means that on top of each file for each appeal now pending at MSPB, there is at least a signature from Robbins agreeing with the judge or a legal note arguing why the judge’s decision should be modified. He has expressed his opinion as to the proper outcome. If another member were appointed while Robbins was still in office, the new member could vote in agreement with Robbins after considering Robbin’s action on the case, or express disagreement.

It now appears that there will not be a new member to concur or dissent from Robbin’s opinions before his term expires. Therefore, his work has no legal value. However, I seem to remember Robbins expressing in an interview that he hoped his opinions would be of value to the new members when they arrive. If that is correct, then it WOULD be a conflict if he continues to express an opinion in pending appeals. Here’s why:

  1. When MSPB issues a decision, the appellant who doesn’t agree with it can appeal to federal court.
  2. However, if the agency doesn’t agree with the decision, it cannot go directly to court. Instead, it has to go through the GC’s office at OPM. Only if that office concludes that MSPB’s decision has significant government-wide impact can the matter then be referred to the Department of Justice, who files a petition challenging the Board’s decision in federal court.
  3. If Robbins were to a) express an opinion on cases now pending at MSPB, and b) the new members were to be swayed by that opinion after he’s gone, then c) it could be argued that he would be in a position at OPM to decide whether the case could be appealed to federal court.

Here’s a hypothetical: An agency fires an employee for off-duty sexual misconduct. It’s a close call, but the judge concludes that there is a nexus between the off-duty conduct and the government job, maybe because the misconduct occurred in government-supplied housing. The judge upholds the agency’s removal. Robbins reviews the employee’s PFR that challenges the judge’s nexus finding, and concludes the judge was wrong. Robbins drafts a legal note arguing compellingly that this particular type of off-duty conduct does not support a nexus finding. He argues that the Board should set aside the removal.

New Board members read Robbins’s argument, are swayed by his opinion, and issue a decision finding no nexus. The agency wants to appeal the issue to federal court. They now have to go through OPM’s GC for approval. Robbins would be in a position to block the agency’s appeal if he were to conclude that the matter does not have government-wide significance.

Of course, this will not be a concern if Robbins recuses from making these sorts of decisions on behalf of OPM. Or, if the new members decline to consider any of Robbins’ leftover legal notes.

And, my comment here should in no way be taken as the casting of an aspersion toward Chairman Robbins. It is not his character that is an issue, but rather the potential appearance of a conflict created by the duality of the appointment. Sometimes, even good people can be put in bad situations. Wiley@FELTG.com

 

How to Save the Merit Systems? Whitaker-ize!

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By William Wiley, December 18, 2018

Oh Lordy, we’re about to lose the civil service. Way back in 1883, Congress created a federal civil service based on merit instead of patronage. The protector of that merit-based civil service has evolved over time and today is recognized to be the US Merit Systems Protection Board. The Board itself is composed of three Presidentially appointed, Senate-confirmed individuals who review, among things, the firings of most all federal employees. That review is impartial and designed to ensure that removals are based on merit, not some illegal, biased motivation. Since 1883, the government has had the back of its employees, promising that if you are a civil servant and you do your job, you will not be fired for arbitrary reasons.

That guarantee is now hanging by a thread.

We have had two vacancies and only one remaining Board member since January 2017. That means that the Board has not been able to issue any decisions since then for lack of a quorum. MSPB now has a backlog of 1500 appeals awaiting a decision when its working backlog should be about five. Each removal appeal involves an unfortunate human being whose life is dependent on the outcome of the appeal. Each of those appeals also involves the potential for the government to have to pay out back pay, attorney fees, and compensatory damages to successful appellants. That potential indebtedness increases daily for each work day that an appeal is not resolved.

As we’ve written about recently here at FELTG, on November 28, by the vote of a single Senator, the panel of nominees submitted by the White House to become the three new members of MSPB was rejected by the Senate. The result of that vote is that the backlog of appeals at the Board will continue to grow until the Board again has a quorum.

Separately, the term of the current Acting Chairman, the sole remaining Board member, expires on March 1. As of March 2, there will be no Board members at all. There is defensible legal argument circulating within the administration (we are told) that without any Board members, by law MSPB cannot exist as an agency. If that is the case, on March 2, MSPB would have to begin to furlough (or RIF?) all of its 240 employees: judges, psychologists, and attorneys. It is conceivable that after 135 years of merit systems protection, the federal civil service will have no protector at all.

Fortunately, here at FELTG, we’ve figured out a way to fix all of this. We call it Whitaker-ize.

As many of you know, on November 7, President Trump appointed James Whitaker to be the Acting United States Attorney General. That position, as are the Board member positions, is normally filled by an individual nominated by the President and confirmed by the Senate. However, the President acted to appoint Mr. Whitaker without Senate confirmation of his nomination. He did this by invoking the provisions of a somewhat recent law, the Federal Vacancies Reform Act of 1998, 5 U.S.C. § 3345 et seq. That law establishes the procedure for a filling a vacancy in an appointed officer of an executive agency during the time before a permanent replacement is appointed. It bypasses the requirement for Senate confirmation and can cause a vacancy to be filled immediately based solely on the action of the President.

The Act specifies three classes of people who may serve as acting officers:

  1. By default, “the first assistant to the office” becomes the acting officer.
  2. The President may direct a person currently serving in a different Senate-confirmed position to serve as acting officer.
  3. The President can select a senior “officer or employee” of the same executive agency who is equivalent to a GS-15 or above on the federal pay scale, if that employee served in that agency for at least 90 days during the year preceding the vacancy.

Well, if it’s good enough to fill the vacancy of US Attorney General, why would it not be good enough to fill one of the vacant Board member positions? Mr. President, why not Whitaker-ize us a temporary Board member?

Option 1, above, is not relevant at MSPB because no Board member has a “first assistant.” One could argue that the Chief Counsel to a member (the position I held previously) is effectively a “first assistant.” However, there’s no need to make that somewhat tenuous argument because options 2 and 3 are absolutely begging to be implemented:

  • Reassign the current occupant of a different Senate-confirmed position. The Federal Labor Relations Authority, a sister-agency to MSPB, has three Senate-confirmed appointees sitting on it. Two of them always vote together and agree on case decisions while the third member often dissents. The cases that come before FLRA are based on the same law that MSPB interprets, the Civil Service Reform Act of 1978. The Authority members are highly experienced and have deep knowledge of civil service law and how to vote on employment disputes. With the stroke of a pen, the President could reassign the third outlying Authority member to be a temporary Board member, thereby allowing cases on which the current Acting Chairman has already acted to be voted on and issued immediately. That new temporary member would be able to function until March 1 when the current Acting Chairman’s term expires. The backlog could be reduced significantly in that period of time and a possible March 2 shutdown of the agency would be avoided.
  • Appoint a senior “officer or employee” of MSPB who is equivalent to a GS-15 or above. The Board’s staff literally bristles with highly qualified individuals who satisfy this criterion. Every regional office has at least a couple of GS-15 level judges plus an SES chief judge who could vote maybe a million cases a day if given the opportunity. Board headquarters is replete with experienced, talented attorney team leaders and office heads who are GS-15 and above and who already know the code to the rest room door at Board headquarters.

Desperate times call for desperate measures. Our country needs a new Board member NOW (not two new Board members as that will just slow things down). We do not have time for the luxury of vetting and voting. Our career civil service, the very backbone of our government, is sinking. Politics, smolitics. If you know people at the White House, please suggest to them that they recommend one of the above options to the President. Then, with a tweet, he can resolve this impending doom. Act quickly, Mr. President, and the quorum-ed-up Board can get in 75 days of voting before we are again down to one remaining (temporary) member. Hopefully, by then you’ll have a new slate of nominees and the civil service will be saved.

Until … the next time. Wiley@FELTG.com

Get Off the Pot

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By William Wiley, December 18, 2018

As our readers know, we strongly advocate that supervisors use the legal tools of civil service due process when confronted with an employee who is not doing his job. In our training, we describe the tools available to supervisors and explain how to use them. Sometimes we get a little pushback, usually from supervisor-participants who have one reason or another why our recommendations are ineffective. Unexpectedly, in one recent webinar, we got not one, but THREE reasons why the FELTG Way© would not work:

  1. If I do what you’re saying, the employee will go to the union and claim a hostile environment.
  2. My boss rates my performance down if I get EEO complaints or grievances.
  3. I don’t want to do that to my worst employee because I’m afraid that he will attack me physically.

To some, these are valid reasons for not doing what they are paid to do. For others, these are just whining. Here was our response to each of these concerns:

If I do what you’re saying, the employee will go to the union and claim a hostile environment.

Yeah, and if you play football, you’re going to get pushed around every now and then. If you get on a crowded bus, sometimes someone else is going to take the seat that you wanted. Employees have the legally given right to complain to their union representatives. They can say anything they want, characterize your treatment of them any way they choose to characterize it. However, that doesn’t mean that their complaints are justified. That doesn’t mean that you should not do what needs to be done to run your little part of the government. By law, holding an employee accountable because they are doing bad work or disobeying rules is NOT a hostile environment. Oh, the employee might complain that it is, but that doesn’t make it so. The union might get all in your face about how you’re mistreating the employee, but that’s just their job. Union claims do not make things true. If I were to say to you that you owe me $100, would you just hand me $100? No, you would not. You would stand up for yourself. Well,  then, stand up for yourself when confronted by an employee or the union. As a supervisor, you are being PAID to stand up for your obligation to manage. If you do not have the courage or self-esteem to stand up, that’s fine. Just stop taking the government’s money that you are being paid to be a supervisor. Request a demotion and get out of the way to allow someone else to do what needs to be done.

My boss rates my performance down if I get EEO complaints or grievances.

Then you have a horrible boss who should get on board or get off the ship. Congress did not create the various federal agencies to have a place for employees to be stress-free and coddled by their managers. It created the agencies to get the work of the government done. How far do you think a basketball team will get if the coach says, “I don’t care how well you play; just don’t get any fouls.” Employees have the right to file complaints. We cannot take that right away from them. If we do whatever is necessary to avoid the complaint, then we have turned over management of the federal workplace to the employees instead of the supervisors. All an employee would need to do to get a raise, or full-time telework, or any other undeserved benefit would be to threaten to file a complaint. It is stupid and foolish to rate a supervisor’s performance solely on the number of complaints filed (if there is validity to the complaints, then of course that’s another story). If your supervisor rates your performance low because of the number of complaints filed, you should challenge that rating to his supervisor. And if confirmed at the next level, you should grieve your rating as high as possible within the administrative grievance procedure. If you exhaust the grievance procedure and the result is that all levels of supervision above you believe that you are a poor supervisor simply because of the number of complaints filed, send all those decisions to us here at FELTG. We know a guy or two over on Pennsylvania Avenue in DC and a Congress on Capitol Hill that would be interested to know that there is a group of federal managers who is afraid of its employees. The absolute epitome of an inept civil service is one in which the employees run the place and managers cower in the corner. If no one else will stand up for an efficient and fair federal workplace, we will here at FELTG. 

I don’t want to do that to my worst employee because I’m afraid that he will attack me physically.

You know what? Nobody ever promised you that being a federal supervisor was easy. The job announcement under which you applied for your job did not say, “This work will always be a piece of cake.” We don’t promise firefighters that they will never get burned. We don’t tell the applicant to be a bomb squad technician that she will never be scared. We don’t recruit soldiers and guarantee them in their enlistment papers that they will not be shot at. Being a federal supervisor can be a very tough job.

There are measures in place to protect the supervisor from being mistreated by his employees. The Federal Protective Service is available for protection within a federal workspace. The Federal Bureau of Investigation has the jurisdiction to intercede if a federal official is threatened away from the workspace for work-related reasons (I know this first-hand, folks; serving as an Administrative Judge at MSPB ain’t the safest job in the world, either). Although these protections are significant, sometimes federal employees get burned and shot at; it’s just part of the job. If you don’t have the courage to be a federal supervisor, to stand up to employee complaints, bad supervision, or even physical threats, that’s fine. Go do something else. Let someone who has what it takes to be a federal supervisor serve in your place. You owe it to yourself, and you darned sure owe it to the American people. Stop taking a paycheck you do not earn.

I am at the end of my career. For the past 40+ years, I have tried to help the federal civil service be a better place for all of our citizens, to do what was intended when we decided to govern ourselves rather than comply with the demands of some dictator or king. After all this time, I am convinced that the weaknesses and the faults within our system do not lie with the unions. We don’t need new laws to have an efficient and fair government. Even the leadership from the White House doesn’t make much difference long term. What we need is supervisors and managers who have the courage to do what they are being paid to do and hold bad employees accountable for their bad-ness. We need agency lawyers who understand why delayed action is as bad as no action and who are not afraid of taking chances every now and then. We need human resources professionals who are not fearful of making mistakes and who have the initiative to learn this business that they are expected to know.

If you are one of these people, then FELTG is honored to support you. However, if you are a whiner and complainer, someone who does not do what you are expected to do in your position, then get off the pot. Be gone. Move out of the way so that someone braver than you can take over.  Wiley@FELTG.com

A No-Good-Option Situation

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By William Wiley, December 11, 2018

Here at FELTG, we pride ourselves on knowing the way out of most every civil service law difficulty. Some answers take more steps than we’d like, but eventually we can help a supervisor get her hands around just about any difficult employee situation. Recently, however, we got asked for advice regarding a problem employee case, and although we’ve come up with a solution, we really don’t like it very much. See if you can do better than we did.

  1. The employee has developed both mobility and concentration problems. She falls down at work even though she uses a walker. On three occasions, coworkers have had to call paramedics to her aid. She cannot carry the files she needs to do her job. She cannot carry her personal belongings to her desk. She relies on coworkers to do the carrying for her. She makes mathematical errors in her timekeeping work. She is late accomplishing tasks.
  2. Her supervisor informed her that her medical limitations were preventing her from performing her job satisfactorily and asked if she would obtain a medical evaluation of her disabilities by her physician to identify any accommodations that could be made. Her physician responded that she was medically able to perform all of the essential functions of her position.
  3. After the medical evaluation, she continued to be unable to perform her work without the assistance of coworkers and otherwise in a satisfactory manner. Her supervisor again requested that she obtain disability accommodation information from her physician. The employee failed to do so.

That’s where we got the call for help. In the old days, the answer was easy: Send her for a fitness for duty evaluation by an agency-selected physician who is not likely to rubber stamp that she can do her job. Obtain a more realistic evaluation of her limitations, determine whether they can be accommodated, and assuming that they cannot, remove her for Medical Inability to Perform.

Unfortunately, today we don’t have that option. As you know if you’ve been to our famous FELTG Absence, Leave Abuse, and Medical Issues Week seminar (next offered March 25-29), OPM abolished the fitness for duty regulations back in 1983. Since then, agencies have been without the authority to direct an employee to undergo a medical evaluation except in three limited situations, none of which apply in this case. The FFD option has been foreclosed.

To our read, that leaves the supervisor with two options, neither of which feels particularly good:

  1. In spite of the employee’s physician’s determination that she can perform her duties, reach the conclusion that she cannot based on a lay person’s observations of her limitations. Determine that she is medically unfit to perform one or more essential functions of her position and fire her for Medical Inability to Perform. Or,
  2. Document her failures at work, relate them to one or more critical elements, then initiate a performance demonstration period (PIP) to give her an opportunity to perform. Document her failures during the demonstration period, then fire her for Unacceptable Performance.

Option A runs the risk of lay evidence of medical inability being contradicted by the employee’s physician’s professional opinion that the employee has no medical limitations. Option B seems cruel in consideration of the employee’s obvious medical infirmities. If the employee would accept Option A, she’s almost guaranteed a disability retirement when she applies to OPM. If the agency decides it has to go with B, there’s no similar almost-guaranteed disability retirement.

Here at FELTG, we feel bad for the employee. We also feel bad for the supervisor. It’s just a darned shame that OPM believes it has to constrain an agency’s ability to require an employee to undergo a medical examination. EEOC has said that it is legal for an employer to require an employee to undergo a medical examination if it has a reason for doing so that comports with a “job-related business necessity.” Were that the standard that OPM would allow us to apply, it would yield a much better resolution than either A or B, above. Wiley@FELTG.com

Somebody Should Make These HR Policy Decisions

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By William Wiley, November 14, 2018

I’ve been making improvements in the civil service since before some readers could even spell MSPB or FLRA. In the accompanying photo, you will see me helping unpack the very first computers delivered to FLRA when I was the chief of staff for the General Counsel. Note the high degree of excitement. They were color monitors! I took a lot of heat from the purchasing staff when I insisted on color, reasoning that it was the future of computing. I can still hear them complain, “What’s wrong with black and green, Mr. Wiley?!?” Yes, sometimes you have to be a little pushy to make good change happen.

I hope that some of you readers feel a bit pushy, because the federal workplace still needs innovation. A lot of what you do in your civil service law workplace, and what we teach here at FELTG, is controlled by employee accountability law or regulation: preponderant evidence to fire for misconduct, performance ratings at least annually, 30 days of pay between a proposal to fire and the firing itself. These are decisions made by Congress and OPM. We are bound to them whether we agree with them or not. They are our civil service law.

However, there are other areas of Human Resources that are related to accountability that are not defined by law or regulation that are just as important. And as far as we can tell, these are decisions being left to individual supervisors to make in most every agency, and which would no doubt benefit from a reasoned choice between options and the developmental of formal policy. Here are three:

1 – Performance Rating Distribution – Every supervisor officially rates individual performance within a group of subordinate employees once a year. Which of these possible alternatives is the better policy option?

  • Most all employees get the top rating because by merit selection, we have hired into the government the best and the brightest.
  • Very few employees should receive the top rating as high performance is exceptionally rare in government. In fact, top ratings should be mathematically limited from year to year and dispersed among those who haven’t received one recently

2 – Discipline for Repeated Misconduct – Every supervisor has the responsibility to propose or implement discipline for employee misconduct. Which of these possible alternatives is the better policy option?

  • Discipline should be corrective. If a repeat offender has been reprimanded, then suspended, removal is warranted for the next incident because he has demonstrated that he does not respond to discipline by correcting his behavior. The civil service does not need to retain individuals who do not respond to discipline.
  • Discipline should be punitive. Repeat offenders need not be fired necessarily as each incident of discipline (aka punishment) extracts an eye for an eye. Just because an individual repeatedly violates workplace rules and does not respond by correcting her behavior is not a reason to fire her.

3 – Substantial versus Preponderant Evidence – Management has to defend every removal action by some quantum of proof when the removal is challenged on appeal. Which of these possible alternatives is the better policy option?

  • Substantial evidence: It is possible that the employee deserves the discipline. This is already the law for performance-based removals throughout government and for both performance and misconduct removals at the VA. The law allows an agency to use this level of evidence for reprimands and suspensions. It is exceedingly easy to prove a removal is warranted at this level (the Supreme Court says this burden is a “grain more than a scintilla”)
  • Preponderant evidence: It is probable that the employee deserves the discipline; more likely than not. By law, this is the mandatory burden of proof that agencies (other than VA) must attain to fire an employee for misconduct. Requiring this level of evidence will prevent more removals than would the substantial level of evidence.

Opinions as to which of these options is best are strong on both sides.

  • Congress routinely rails, and the media frequently howls, when statistics show that most federal employees get the top performance rating. At the same time, for 40 years the law has precluded an agency from comparing employees to each other when rating an individual’s performance.
  • We often recite the mantra that “discipline is corrective, not punitive,” but I could not find that as policy anywhere on the web other than on a union’s website. GAO issued a report this summer that was critical of agencies that suspend employees more than once, suggesting a a removal should follow a suspension. Yet, the Merit Systems Protection Board has mitigated removals to second suspensions and imposed 90-120 suspension in lieu of removals without any evidence that long suspensions like that are somehow more corrective than shorter ones.
  • Although preponderant evidence is legally mandated only for removals, demotions, and long suspensions, agencies often incorporate that standard into lesser suspensions and reprimands. Arbitrators routinely apply the “just cause” standard to all discipline, a level commensurate with preponderant evidence according to the literature. At the same time, government agencies are routinely criticized for letting employees “get away” with public misconduct.

Here at FELTG, we certainly have our opinions as to which of these options is the better. However, it is not our role to make these policy decisions. So, whose is it? Is it OPM’s? If so, why haven’t they done it? Is it the head of your agency? If so, do you see these issues addressed in agency directives? How will you coordinate with everyone else in your agency to make sure that everyone is working from the same principles and beliefs?

When you want a team to work together – football, synchronized swimming, or a military unit – you put the individuals in uniforms and make centralized decisions. Somebody in government should be making these decisions centrally and applying the selected options uniformly. Otherwise, you’re just a bunch of smart people working in your own little world, choosing from among options that have good arguments on both sides.

By the way, if you REALLY want FELTG to make these decisions for you, we are happy to oblige. Just send us your requests, along with appropriately dedicated funding, and we’ll delighted to write your policies for you. We’ve even set up a sub-component just to provide this service: the Department of Accountability and Discipline. If you can’t decide for yourself how the government should be run, just leave it up to our DAD. Wiley@FELTG.com

Once Again, MSPB Nominees Fail to Get a Vote: What Happened Today? What Happens Next? 

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By William Wiley, Deborah Hopkins, Dan Gephart, November 28, 2018

 

The MSPB is hanging by a thread.

This morning, the Senate Committee on Homeland Security and Government Affairs recessed without voting on the three US Merit Systems Protection Board nominees. Sen. Ron Johnson, the Committee Chairman, told reporters that he decided to not bring up a vote after a 7-7 roll call vote on member Andrew Maunz. There was not a roll call vote on either of the two other nominees.

Wait, you wise FELTG readers are probably saying, “Doesn’t the committee have 15 members? And don’t Republicans have the majority?” Per a source, Sen. Rand Paul voted no by proxy, depriving the majority of an 8-7 vote. Sen. Paul opposes the existence of the MSPB, according to the source.The nominations of Chairman Dennis D. Kirk and Members Julia A. Clark and Maunz will be returned to the administration without a vote and the nomination process will have to begin all over again with a new Senate in January.

Meanwhile, more  than 1,500 cases in the MSPB backlog will go unaddressed. By the time the new Board members, hopefully, get confirmed sometime next spring, there will probably be about 1750 cases waiting to be adjudicated.

Hopefully is the critical word. Sen. Johnson, according to a source, will not review the nominations if they are resent next year unless he can get Sen. Paul or a Democrat to change their minds.Remember: Acting Chairman Mark Robbins, the sole remaining member of the MSPB, turns into a political pumpkin at midnight on March 1. His term will expire, and he cannot be renewed or held over any longer. Unless a miracle occurs in February, it’s likely that come March, the Board will be without any members for the first time in history.Meanwhile, FELTG has been told that there is a legal opinion floating around that if Robbins leaves and no Senate-confirmed Article II person is on board to replace him, then the MSPB as an agency goes out of existence.

Before today, not one nominee to be a member of MSPB was rejected at the committee level in the Senate. Today, that happened to three nominees. It is impossible to predict what will happen next, other than that the federal civil service will continue to suffer and employee appeals will continue to disappear into the gapping void that was formerly the US Merit Systems Protection Board.

These are sad times, indeed, for the federal civil service. With respects to John Donne: “No federal employee is an island, entire of itself; every employee is a piece of the civil service, a part of the main. If a single employee be washed away by the loss of oversight protections, the federal civil service is the less, as well as if an entire agency were, as well as if a position of thy friend’s or of thine own were: any employee’s loss of rights diminishes me, because I am involved in the civil service, and therefore never send to know for whom the bells tolls; it tolls for thee.”

FELTG Modifies the No-Clean-Record Executive Order and OPM’s Interpretative Guidance

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By William Wiley, November 14, 2018

This is the final article of a three-part series.

As we have discussed previously, one of the Executive Orders (EOs) issued by the White House on May 25 effectively did away with an agency’s ability to resolve an employee controversy by entering into a “clean record” settlement agreement. In a later article, we pointed out the deficiencies in OPM’s “Interpretative Guidance” issued on October 10. OPM intended the guidance to clarify what the EO really means. Our conclusion is that the EO and the interpretation have problems when we try to apply them in a practical front-line situation. And who better to step into the breach and clean things up than little old FELTG?

First, to be perfectly clear: We love clean-record settlements. They are no-fault resolutions in which both sides concede something of value to the other. If they result in a future government employer hiring a formerly bad employee, that’s their problem. There are a number of ways to address that issue without having to take away the flexibility of a clean-record settlement. With that said, if we were trying to implement what appears to be the desires of the White House relative to surfacing prior workplace problems of applicant former employees, here’s what we’d say, in an EO or in interpretative guidance:

To facilitate transparency relative to prior workplace problems job applicants might have had, agencies are to implement the following procedures immediately:

1 – When an adverse action is proposed, the agency will open an adverse action file in the Office of Human Resources. That file is to contain the proposal notice with its attachments, the employee’s response to the proposal, the relevant operative decision letter, a copy of any related appeal, grievance or complaint, and the documents resolving the appeal, grievance, or complaint.

2 – These files on individual employees are to be retained by the agency for at least five years. There is no provision for destroying or altering these documents within this time period. Copies of the files are to be provided to any other federal agency with a need to know on request within seven days of the request.

3 – OPM, as the administer of this provision, may request file copies at any time.

Bottom line: This approach satisfies the goal of the EO to provide real-time information to selecting officials about the government work history of a job applicant. It does not get all wrapped up with what’s a “personnel record,” or the good or not good reasons for altering the document. It allows an agency to honestly offer in settlement that all relevant documents will be removed from the employee’s e-OPF. It even provides that the parties can enter into a settlement agreement, to be incorporated into the adverse action file, in which both management and the individual agree to a no-fault resolution of the matter.

The adverse action record is not thereby “clean,” but it is annotated to show that the parties reached an agreement that the employee should be allowed to go forward with his federal career, albeit at another agency.

What the hiring agency decides to do with that information is up to that agency. At least this way, everything is transparent, above board, and honest. Wiley@FELTG.com

The (Good?) Old Days in Civil Service Law

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By William Wiley, November 14, 2018

Hey, smart people! Guess what this is?

The photo above is of an “Appeals System” 9×12 card that I took off of a Navy bulletin board in the mid-70s. It shows the appeals processes available to federal civilian employees in 1969.

I thought you might like to know what it was like Back in the Day when old Bill Wiley started in this business. First, there are three major differences in how adverse actions were viewed back then:

  • “Reduction in Rank” was just as appealable as was a monetary or grade demotion. Rank was given an extremely broad definition. If I was reassigned from supervising eight subordinates to only seven, here comes an appeal. Move my office from the top floor to the basement, my rank is starting to feel reduced again. Easy to see why Congress did away with this concept when it passed the Civil Service Reform Act of 1978 (CSRA).
  • Today, to be entitled to a hearing challenging an adverse action, a suspension needs to be more than 14 days long. In 1969 and up to 1978, you got a hearing for a suspension only if it exceeded 30 days.
  • Thanks to the CSRA, unionized civil servants today have a right to binding arbitration. This poster states in a footnote that even though arbitration may be invoked by employees in a collective bargaining unit, the result is only advisory to the agency.

And now, for the procedural choices. If the Navy reprimanded an employee or suspended him for 30 days or fewer, the employee had an appeal choice to make between two options:

  1. A hearing before the Commanding Officer (CO) (facility head for other agencies) followed by a written decision, or
  2. A procedural review for suspensions to a Civil Service Commission (CSC) regional office and then another procedural review by the CSC Board of Appeals and Review. Written decisions at both levels, but no hearings. CSC was the precursor oversight agency before MSPB took over in 1978.

If the Navy invoked a longer suspension, a reduction in rank or compensation, furloughed, or fired the employee, the employee had an appeal choice between two options:

  1. In the Navy (with parallel procedures in other agencies), the employee had a right to a hearing before the CO, followed by a written decision. (Unionized employees could substitute arbitration at this step.) That decision could be appealed to the Secretary of the Navy, with no hearing, just a final written decision. As an alternative to the Secretary of the Navy’s review, the employee could take the CO’s decision to CSC, as below.
  2. As an alternative to the CO’s review, above, or after the employee invoked the CO’s review and received a decision, the employee could appeal to the CSC regional office where he would get a hearing and a written decision. Unlike the CSC review of shorter suspensions that were just on the procedures, these reviews were of the merits of the action. Either the employee or the agency could challenge the decision of the CSC regional office to the CSC Board of Appeals and Review. That review level did not provide for a hearing, but it did provide for a final written decision.

Compare these old appeals procedures to today’s procedures provided for by the CSRA and you will see three huge philosophical shifts that occurred:

  • Binding arbitration! Think about that. The federal government (aka, the king) was yielding its right to decide who worked for it and to award backpay and attorney fees to an unknown, untested, outside entity widely believed to benefit from setting aside disciplinary actions. For no other reason, if I were a federal employee, I would form or join a collective bargaining unit just to get this benefit.
  • Judicial review! Not only was the power of the executive branch being diminished by the implementation of binding arbitration, the CSRA provided that final review of serious adverse actions was vested not with the President via the heads of the federal agencies, but with the courts. Unlike decisions being made within the executive branch, court decisions are not all that concerned about what makes for an effective government. Judicial decisions interpret the law. The negative practical effects of those legal decisions, the court leaves up to Congress to fix.
  • Representation! Although some agencies allowed for representation in the appeals process in bygone times, the only alternative in which representation was guaranteed was in the advisory arbitration procedure. When appealing to the CSC, representatives were sometimes tolerated, although the appellant was given no explicit rights to representation. Under the CSRA, employees have statutory rights to be represented in any adverse action. With representation soon came discovery and trial-like administrative hearings, developments that have evolved too often into tools for the coercion of agencies.

These days, an agency has to not only decide to fire a bad employee, it must be ready to commit the legal resources and management time necessary to defend that decision. It’s easy to see why some managers choose to avoid holding bad employees accountable through adverse actions given the high costs of defending those decisions, even when they are valid decisions for doing so.

So now you know what it used to be like. Good old days, bad old days … you get to decide. In comparison, we have the current days, built on the philosophical decisions made by Congress in 1978. Most importantly, though, we have the days yet to come. There’s significant effort afoot to reduce the power of unions in the civil service. Congress has already made it easier to fire employees at the VA, and is considering language to expand that legislation to the entire executive branch. At least a couple of members of Congress would replace the federal civil service with about two million employees at will. (Can you say “patronage,” boys and girls?)

It’s good to remember the past. It’s essential to know the present. It’s historically vital to pay attention to what will be happening in the future. Wiley@FELTG.com

OPM Clarifies the No-Clean-Record Executive Order Provision, Part 2

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By William Wiley, November 6, 2018

As we discussed last week, one of the Executive Orders (EOs) issued by the White House on MAY 25 effectively did away with an agency’s ability to resolve an employee controversy by entering into a “clean record” settlement agreement. There are several problems with that new limitation. On October 10, OPM issued “Interpretative Guidance” to address one of the problems.

That problem is that the EO left no room for exceptions. When a document was placed in the employee’s personnel record, it could not be removed as part of an agreement with the employee. No exceptions. Well, upon reflection, OPM advises us that there are indeed two exceptions to this iron-clad no-clean-record rule:

Corrective Action Based on Discovery of Agency Error  

Section 5 requirements should not be construed to prevent agencies from taking corrective action should it come to light, including during or after the issuance of an adverse personnel action, that the information contained in a personnel record is not accurate or records an action taken by the agency illegally or in error.

Corrective Action Based on Discovery of Material Information Prior to Final Agency Action

When persuasive evidence comes to light prior to the issuance of a final agency decision on an adverse personnel action casting doubt on the validity of the action or the ability of the agency to sustain the action in litigation, an agency may decide to cancel or vacate the proposed action.

Practitioners on both sides have expressed relief at OPM’s providing exceptions to the EO. You see, every practitioner we’ve spoken with – union or management, attorney or HR specialist – would like to be able to settle cases by agreeing to a clean record. An analogy to the criminal justice system helps us understand the gravity of the EO’s restrictions. Just think what it would be like in the judicial system if charged individuals could not take a plea bargain. These two provisions give at least a little ground for the practitioner to stand when arguing that a document should be removed from the employee’s e-OPF. Besides, these agreements have to be self-reported to OPM annually. There is no oversight to this process. We all learned in elementary school that we get higher grades when we grade our own papers.

At the same time, the EOs’ restriction and OPM’s “clarification” really do not make a lot of practical sense in some ways:

  • The EO says that adverse documents may not be removed from the “employee’s official personnel records.” The only record that meets that definition is the employee’s Official Personnel File, aka the e-OPF. That’s the only employee file that travels everywhere with the individual and lasts forever, into retirement and beyond, perhaps into heaven or hell for all we know, amen.
  • Agencies sometimes maintain separate Employee Relations files or Discipline files. However, strictly speaking, those are not an employee’s “personnel records” because they stay with the agency. They do not follow the employee as he moves from one agency to another. They are “agency” files, not an employee’s “official personnel record.”
  • There are three documents created when an agency fires an employee:
    1. Notice of proposed removal
    2. Decision to remove
    3. SF-50 that effectuates the decision to remove
  • Only the third document is routinely placed into the e-OPF. The first two, if retained at all, are retained in files in human resources. Therefore, there is good argument that the EO restricts agencies from removing an SF-50 from the employee’s e-OPF, but does not affect the retention or deletion of the other two documents: the proposal and decision.

OPM’s clarification, however, seems to take a broader view. It talks about prohibiting the removal of documents in a “personnel file,” not just the employee’s official personnel records. Does that mean that the agency is prohibited from deleting the proposal and decision memos even if an SF-50 is never generated (because the employee resigns)? Who knows?

Separately, both the EO and the OPM memo refer to prohibiting an agency from removing these documents in only three situations:

  1. In response to an employee complaint,
  2. When settling an appeal or grievance initiated by the employee, or
  3. Resolving an employee-initiated action.

That leaves open the question: If there is no employee-initiated complaint/grievance/appeal and the employee simply asks that the documents be removed, does the EO prohibit removal in that situation?

Bottom line: The OPM memo gives the agency a reason to remove documents in a certain limited situation which the EO did not. However, this whole thing is still a mess. Agencies are all over the place interpreting what it means. Gee, don’t we wish that there was a tiny little training company who could provide better guidance than what we have so far? Only time will tell if there is. Wiley@FELTG.com

OPM Clarifies the No-Clean-Record Executive Order Provision

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By William Wiley, October 30, 2018

One of the Executive Orders (EOs) issued by the White House on May 25 effectively did away with an agency’s ability to resolve an employee controversy by entering into a “clean record” settlement agreement. As background, here’s how life works in the federal workplace when it comes to taking adverse actions against employees:

1 – The agency proposes, then decides to implement an adverse action … say, a removal.

2 – The employee exercises his right to challenge that removal by filing an appeal, complaint, or grievance.

3 – Neither the employee nor the agency really wants to go through the appeal/complaint/grievance process. These procedures are expensive, time-consuming, lengthy, confrontational, and of uncertain outcome for both sides. Therefore, both management and the (former) employee have a strong incentive to settle the matter without litigation.

4 – Employees often just want to get on with their lives. They really don’t want to return to the agency that fired them. Agencies don’t really care what happens to the employee after he is gone, they just want him gone, never to return.

5 – Employees perceive that they will have a challenge getting on with their lives if it is documented in their official personnel file (OPF or e-OPF) that they have been fired. Therefore, as part of a settlement negotiation, the employee will ask that the SF-50 personnel form documenting his removal be removed from his e-OPF. Hence, the term “clean record.”

6 – Agencies don’t care if the employee’s record is clean. They know him and he is never getting rehired at that agency regardless of what’s in his e-OPF. If another agency is stupid enough to hire the employee without calling the previous-employing agency to check up on the employee’s work history, things not necessarily in the e-OPF, then that’s their problem. Agreeing to provide a clean record is a powerful bargaining chip that agencies have in settlement discussions because, in the agency’s opinion, they cost the agency nothing.

According to the recent EO, this widespread practice is bad for government. The belief appears to be that somehow by keeping this adverse information out of the e-OPF, future agency employers are disadvantaged. The future employer might hire the formerly fired individual without knowing about his previous bad work history. So, the EO requires that this practice be abandoned. Section 5 of Executive Order 13839 of May 25, 2018, Promoting Accountability and Streamlining Removal Procedures Consistent with Merit System Principles, provides as follows:

Sec. 5. Ensuring Integrity of Personnel Files. Agencies shall not agree to erase, remove, alter, or withhold from another agency any information about a civilian employee’s performance or conduct in that employee’s official personnel records, including an employee’s Official Personnel Folder and Employee Performance File, as part of, or as a condition to, resolving a formal or informal complaint by the employee or settling an administrative challenge to an adverse personnel action.

Well, even if the principle behind the EO is a good one, the practical reality undermines the requirements of no-clean-record for one simple reason: HIRING OFFICIALS DO NOT ROUTINELY REVIEW AN APPLICANT’S e-OPF DURING THE HIRING PROCESS. Whether the SF-50 documenting a prior removal is in the record or not, it doesn’t matter. The application form itself requires the applicant to disclose any separations from previous employment under adverse conditions. That requires the applicant to disclose separations resulting from settlements with other government agencies as well as separations from private sector employers. Lying on an application for government employment is a criminal violation and can result in jail time for the applicant. The cleanliness, or lack thereof, of the e-OPF is an exceedingly minor matter.

The result of the EO is that a valuable bargaining tool available for agencies has been taken away, with very little resulting value for the government by the iron-clad ban on clean record settlements. Whoever conceived of Section 5 might be onto something worth pursuing, but the approach taken by the EO reveals a lack of practical understanding of the federal hiring process.

On October 19, OPM stepped into the fray by issuing an “Interpretative Guidance” memo to help agencies deal with the restrictions of Section 5. Unfortunately, for many of us front-line practitioners, while the memo giveth, it also taketh away. We discuss that issue in a separate FELTG article.

Isn’t this crazy? Here at FELTG, we’re just a tiny little training company, full of contractors just trying to make a living. Yet we have to help you wonderful civil service law practitioners understand what the White House is really trying to do. Geez, I hope we get this right. Wiley@FELTG.com