Learning Points Can Be Good or Bad

By William Wiley

Several months ago, I wrote an article regarding a Board case in which the agency won the appeal in spite of there being significant mistakes in the proposal and decision letters, McCook v. HUD, MSPB No. SF-0752-14-0389-I-1 (August 3, 2015) (NP). I learned a couple of things from publishing that article:

The Good Learning Point: If you’re trying to get folks to read your articles, mention their colleagues by name.

The Bad Learning Point: Readers don’t always understand what we intend to say in the articles we publish. If you need to re-read the McCook article, you can find it on our website in the September 2015 Newsletter. My intent in the piece was a) to point out that the proposal letter was deficient because it did not specifically address the relevant Douglas factors, b) to highlight that the decision letter was problematic because it mentioned several Douglas Factors not in the proposal, and c) to get the attention of the shakers and movers at HUD (and other agencies) to make some changes so that these sorts of basic mistakes don’t occur again. The only potential shakers or movers I could identify in the Board’s decision were the three attorneys who represented HUD on appeal. My hope was that some reader would know them, point out to them that in my opinion attaching a Douglas Factor Worksheet to the proposal would have taken care of the difficulties in this case, and that HUD would take steps to make sure that things were done better the next time.

Man-oh-man, did I get that wrong. Instead of my hearing from someone at HUD that their procedures now would ensure that a Douglas Factor Worksheet is attached to every proposed removal letter, I got a long letter from a supervisory attorney explaining the hard work his staff had put into defending HUD in this appeal, and how that should have been the point of my article. I responded to his letter with my explanation of the point of the piece; not being to criticize the legal work his attorneys put forth to defend the agency in the appeal, but to criticize the system that allowed whoever was the (no doubt well-intended) practitioner who drafted the proposal and decision letters to make mistakes that have been mistakes since 1981.

Another Bad Learning Point:  I thought that with a personal clarification of the point of the article, the matter would be put to rest. Perhaps because this was all happening around Christmas week, I was in a particularly optimistic mood. So foolish of me. After receiving my response, the supervisor called me early one morning to tell me the following:

• People who read the article saw it as a criticism of the legal work done by his attorneys.
• I should publish his letter to me.
• He has never read our newsletter before.
• It is the fault of the managers who signed the discipline letters, not the practitioners who drafted them, that a proper Douglas assessment was not a part of each letter.
• He does not know of any affirmative steps that have been taken within HUD to make sure that in the future a Douglas Factor Worksheet is attached to every proposed removal.

I was heartbroken. My hope in writing the article was that readers would understand the important of complying with Douglas and thereby avoid the mistakes that were made in this case. Instead, I am told that the article was seen as an unjustified criticism of the legal work done by the agency representatives in this appeal. So let me do the best I can to clarify what we here at FELTG are saying about the McCook decision:

1. The proposal letter should have had a Douglas Factor Worksheet attached so that the Board did not have to dig around to find the penalty factors in the proposal.
2. The decision letter should not have referenced ANY penalty factors not in the proposal because that is almost always a violation of due process.
3. Nothing in this Board opinion suggests that the three agency attorneys who defended HUD in this appeal are anything other than super-duper hard-working lawyers with superior litigation skills.

So, my apologies if my article hurt someone’s feelings or made anyone feel singled out. That was certainly not my intent. We publish our FELTG newsletters to help agencies and those who defend employees know the mistakes that are made in this business and the best practices to protect employee rights. For those readers who do not read our articles that way, who do not see them as helpful but rather as critical, perhaps you shouldn’t read our newsletter any longer.

For those of you who read our articles for legal analysis, best practices, and traps to avoid – stay with us. Yes, we knock MSPB/EEOC/FLRA/OPM/OSC/Congress when they do something we think is bad for America, and we occasionally call out employer agencies that should be doing things better. Heck, we even point out mistakes made personally by one of us who writes or teaches for FELTG. Our newsletter is an instructional tool, not a congratulatory make-you-feel-better column in the back section of your local newspaper.

If you want to learn how to do your job better, here we are with our articles and our courses. Otherwise, we wish you the best of luck. Wiley@FELTG.com