“Turn Out the Lights, the Party’s Over”

By William Wiley, February 6, 2018

That old party-ending song by the Spaniels seems appropriate this week. In case you haven’t heard the death knell tolling, here’s the shot heard ’round the civil service last week. From the State of the Union address:

“Last year, the Congress passed, and I signed, the landmark VA Accountability Act.  Since its passage, my administration has already removed more than 1,500 VA employees who failed to give our veterans the care they deserve. … So tonight, I call on the Congress to empower every Cabinet Secretary with the authority to remove Federal employees who undermine the public trust or fail the American people.”

Media outlets on both sides of the political spectrum foresee this initiative, if it comes to pass, as making it easier to fire people from government as the President claims has happened at DVA this past year. Of course, some talking heads think this is great, and some think this is terrible. Here at FELTG, we take a step back and try to understand just what it means before we jump to judgment.

First, though, a prologue. If an initiative gets into a State of the Union address, you can bet your next paycheck that there is someone very important and powerful in the administration behind the idea and willing to make it happen. This is not some stray remark that will be forgotten after the next tweet storm. This idea has legs, it beat a lot of other ideas out to make it to the speech, and somebody is going to be pushing hard to make it law.

With that said, if the DVA procedures are implemented for the rest of government, let’s take a look at what will change. Read carefully because some of what I’ve seen in the media is not exactly accurate or is misleading. If you get it here from the employment law pros, you get it right.  All numbers refer to calendar days:

Removal Procedure	Most of Government	DVA New Law
Employee right to a PIP for poor performance	Yes	No
Proof necessary to support removal	Preponderance	Substantial
Days for employee response to proposed removal	7	10 (I think)
Days between proposal & removal	30	Usually 21
Days to file an appeal to MSPB	30	7
MSPB stay authority (to order agency to stop)	Yes	No
Days for AJ to rule	120 (flexible)	63 (firm)
AJ authority to reduce penalty	Yes	No
Days to appeal an AJ decision to Board	30	9
Days to appeal of Board decision to court	35	9

Grouping the changes allows us to consider their value in the real world (not to be confused with the World of Capitol Hill):

Shortened Time Frames – Reducing the response and decision periods while the employee is on salary makes sense. Let’s get this thing done and get the employee off the payroll. However, we have to admit that a nine-day reduction – with only five to seven of those days being in a pay status – isn’t the greatest salary savings we can imagine; it’s a mere drop in the bucket considering the agency’s overall payroll.

In comparison, shortening the appellate time frames, when the employee is no longer on the payroll, doesn’t seem to create much benefit for the agency, other than one big one that no one’s talking about. Shorten the time frames for an appeal, and we’ve reduced the employee’s opportunity to find a lawyer-representative, and for that representative to put together some sort of defense of the employee. Is it really fair to the employee to allow the agency unlimited time to build a case for removal, then restrict the employee’s time to prepare a defense for no good reason other than disadvantaging the employee? We’ll leave it up to the appellants’ bar to argue that one further.

Reduced Burden of Proof – A lot has been made of this aspect in the press. On paper, lowering the agency’s burden from “more likely than not” (preponderance) to only substantial evidence looks like a big deal. Substantial evidence is “more than a mere scintilla of evidence, but less than the weight of the evidence.” Jones v. HHS, 834 F.3d 1361, 1366 (Fed. Cir. 2016). That should be a major change when we consider that a scintilla is no more than a particle, iota, jot, whit, atom, speck, bit, trace, ounce, shred, crumb, fragment, grain, drop, spot, modicum, hint, touch, suggestion, whisper, or suspicion.

Unfortunately, reality doesn’t give us a lot of hope with this change. Since 1979, the burden of proof an agency must satisfy when firing someone for misconduct has been at the preponderance level. However, in 2015 the good folks at MSPB’s Office of Policy and Evaluation surveyed a bunch of federal managers and found out that 97% (97 freaking percent!) of front line supervisors think the burden is much higher than that. In fact, 90% thought we need just as much proof to fire someone from government as we need to send that same person to the electric chair. Congress could lower the evidence burden even further – to a jot, iota, or whisper – and it would do no good if the profession of civil service law doesn’t do a better job of explaining things to decision-makers.

No More Penalty Mitigation – Of the three areas of change, this one stands to be the greatest benefit to agency managers who are trying to hold employees accountable (and the greatest worry to our friends on the union side). Today, when an agency builds a removal case, half the effort goes into defending the penalty against mitigation; analysis and proof of the famous Douglas Factors. Here at FELTG, when we draft a proposed removal for a supervisor, the charge is usually no more than a page, and the Douglas Factor Worksheet is often three or four pages. Each worksheet page requires file evidence to prove each factual statement in the Douglas Factors. Little is more painful in our business than losing a removal – even though misconduct was proven – because the Board concluded that our penalty was too severe.

Under the DVA’s new procedures, prove the misconduct that is charged, and we’re done. No need to muster evidence to defend against mitigation on appeal. Woo hoo! But think how this could work out. The 20+ year employee with no prior discipline and outstanding performance ratings comes to work 15 minutes tardy one day. If the agency fires him and proves the tardy charge, under DVA’s new law, it appears that we’re done. The Board and the courts have no authority to lower the penalty. If they uphold the charge, they uphold the removal, even though most of us would consider the misconduct to be trivial. Is this really what we want for our federal employees? Is this what we would call an efficient civil service?

Lots of speculation in this situation, folks. And I defer to anyone who has a better handle than do I on DVA’s new law and the direction we’re going with this whole thing. Until we start getting some case law, and until Congress decides whether it will follow the lead of the President, your guess as to how things will look this time next year is just as good as anyone else’s. Wiley@FELTG.com