“Just Quit”

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By William Wiley, August 8, 2017

If you’ve been around this business of civil service law very long, you’ve probably heard of the US Office of Special Counsel (not to be confused with Robert Mueller’s Office of Special Counsel over at DoJ). That tiny little agency (150+) has the awesome responsibility of investigating allegations of “prohibited personnel practices,” perhaps most importantly, allegations of the mistreatment of federal employees because they have blown the whistle. Congress loves this agency because whistleblowers make public Executive Branch malfeasance, waste, and law-breaking. Whistleblowers disclosed the possibility of significant harm to our veterans at certain DVA facilities because of employee misconduct. Whistleblowers also told us that some of the headstones at Arlington National Cemetery were misplaced, that TSA was allegedly reducing staffing levels to an unsafe level, and that the Department of Interior was dangerously reducing the amount of money devoted to protecting drivers on the Baltimore-Washington Parkway.

Here at FELTG, we often work with agencies who are undergoing an OSC investigation into possible whistleblower reprisal. If you are a repeat reader of this here newsletter, you know that we have previously expressed concern at some of the tactics we’ve seen investigators from that office use. Without rehashing those specifics, a couple of quotes from others might make the point from a different source. In our fantastic and fabulous seminar MSPB Law Week (next offered in DC September 11-15), we work with about 50 agency practitioners on many topics relevant to MSPB law, whistleblower reprisal investigations among them. Recently, we asked a group of attendees if any had ever been through an OSC investigation. Several attendees raised their hands. When we asked for take-aways from those investigations, a number of agency representatives volunteered their succinct perception and advice regarding the experience:

“Overreaching, intimidating, and scary.”

“One-sided and aggressive.”

“Just quit.”

For the un-initiated, OSC responds to claims of whistleblower reprisal from employees – if it believes that they may have merit – by contacting the responsible agency and asking for documents, phone records, emails, hard drives, privilege logs, contact information for former employees, schedules for witness depositions, and just about anything else it expects might be relevant to the reprisal claim. In our FELTG experience, the last response we helped an agency with required that we conduct document-by-document review of over 3,000 emails covering the past two years. (There went another of our Saturdays spent trying to help the civil service function with greater accountability.)

In the past as a practical matter, agency responses to OSC document requests were something of a dance; e.g., OSC would ask for five years of emails, we would offer two. OSC would demand emails that in any way mentioned the complainant, and we would offer only those relevant to the personnel action at issue. OSC would ask for emails between agency counsel and agency management, and we would refuse based on attorney-client privilege. Offer and counter-offer, threatening and responding to threats, sometimes cursing and spitting (among ourselves, of course … NEVER curse nor spit at an OSC investigator). Eventually OSC would get enough information on which to make a prosecution decision and the agency would retain some degree of confidentially in its records.

Well, my friends, that’s all about to be history. The Senate recently passed a bill, which the House will no doubt agree with, that will provide the following:

  • The Special Counsel will be authorized to have timely access to all records, data, reports, audits, reviews, documents, papers, recommendations, or other material available to the applicable agency that relate to an investigation, review, or inquiry.
  • The Special Counsel will be authorized to request from any agency the information or assistance that may be necessary for the Special Counsel to carry out its duties, and require the agency to provide to the Special Counsel any record or other information that relates to an investigation.
  • A claim of attorney client or attorney work product privilege by an agency, or an officer or employee of an agency, shall not prevent the Special Counsel from obtaining any material described above.

“Office of Special Counsel Reauthorization Act of 2017” S. 582

Hard to give OSC much broader authority than this. No requirement that an OSC investigator establish relevance for the information, so fishing is allowed. You can pack away that little JD behind your name if you thought it would allow you to engage in confidential communications with your employer. In fact, there’s no requirement that OSC tell the agency anything other than, “Here’s a list of the materials we need, and we would like them by COB today. Thank you very much.”

Woof.

There’s no clear enforcement authority within the legislation, so we don’t know exactly how OSC can go after any agency officials who refuse to comply with its materials demand. Historically, OSC has taken the position informally that a management official who does not obey its orders is committing a prohibited personnel practice, violating the merit systems principles. 5 USC 2302(b)(12). Unfortunately, we have no case law to direct you to for clarification as to exactly how all this works out and just where OSC’s ability to prosecute an offending management official starts and stops.

Hey, maybe this is the way that the civil service should be. If this bill becomes law, it will certainly free up my Saturdays for other things when I don’t have to be concerned about reviewing thousands of documents for privileged communications. If you are an agency lawyer and your blood begins to run cold when you read this legislation, chill. We have members of Congress today who believe that the civil service should be at-will employment. Turning over the keys and the codes to the agency’s files and communications is just another drip in the drip-drip-drip of civil service change.

So, if you don’t like it, close your eyes, think of England, and get used to it. Or, as the participant in our class suggested a couple of months ago, when you get that call from the friendly OSC investigator notifying you that a whistleblower reprisal investigation has begun, just quit.

Unemployment may well be the better option. Wiley@FELTG.com

Anthony Scaramucci and OPM’s Proposed Notice Leave Rule

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By William Wiley, August 2, 2017

You frequent readers of our newsletter know that here at FELTG we’ve been railing against OPM’s proposed rule regarding Notice Leave. That rule if implemented as drafted would require that federal supervisors retain federal employees in a work status after a decision has been made to fire them, except in the most unusual of situations, and only then after documenting the extensive consideration of other options and obtaining a variety of high level approvals. We argue that the rule should be rewritten to make it drop dead easy for managers to protect the federal workplace by removing fired employees from the worksite immediately, not several weeks after the decision to fire has been made.

Case in point: Anthony “The Mooch” Scaramucci. If you have been in a cave without wifi for the past several days, you’ll need to Google his name to find out what happened to this former federal employee. The bottom line is that, according to news reports, his supervisor decided that Mr. Scaramucci had engaged in conduct inconsistent with an efficient government, and relieved him of his duties. Hey, when there are 2.2 million workers, they can’t all be great like you and me.

Well, just think what the situation would be like if Mr. Scaramucci had been a career employee in whatever agency you work, instead of being employed at the White House. After making the decision to fire him, his supervisor would have had to find government work for Mr. Scaramucci to perform for a month because he does not fall into any of the categories of employees  that are covered by OPM’s proposed Notice Leave rule. He does not a) propose a threat, b) appear to need to destroy evidence, or c) seem inclined to destroy government property. According to OPM, employees like Mr. Scaramucci who’s removal has been decided should be retained in a work status so that the agency “can continue to benefit from the employee’s skillset and abilities to further the agency’s mission.” (swear-to-god, they say that).

So what would be Mr. Scaramucci’ s skillset from which the government can benefit? Well, my goodness, that gentleman does know how to turn a colorful phrase, doesn’t he. Perhaps we could ask him during this post-firing employment phase to provide comment to OPM regarding its proposed Notice Leave Rule. If so, in a wonderful New York accent, he might say something like:

“Are you [freaking] kidding me? What [d-bag] bureaucrat over there thinks this is a good idea? They should go [anatomically impossible essential function] themselves.”

You have minutes left (by August 14) to tell OPM what you think about the proposed rule. Please, for the sake of our great country, tell them.  Email pay-leave-policy@opm.gov.  When submitting comments via this email address, place this in the subject line:  RIN 3206-AN49: Proposed Rule Comments-Administrative Leave.  In the body of your message identify the section of the regulations on which you are providing comments. The proposed regulations can be found at https://www.gpo.gov/fdsys/pkg/FR-2017-07-13/pdf/2017-14712.pdf.

And if you choose to use some of that delightful New York language in memory of The Mooch, who could blame you? Wiley@FELTG.com

It’s Not Too Late to Make a Difference

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By William Wiley, July 25, 2017

In last week’s newsletter, we described OPM’s lack of concern for your life and the lives of those with whom you work. It has demonstrated this insensitivity by issuing a proposed rule that would effectively require that an agency keep a fired employee in the workplace for up to three weeks after the decision to fire him has been made. Stressed out people sometimes become violent. We cannot ignore the fact that individuals who are fired are under significant stress. Requiring fired civil servants to continue to work after their removals have been proposed and even decided is an unnecessarily dangerous policy.

You can do something about this. Whoever you are wherever you are, if you can access an email account, you can tell OPM what you think: pay-leave-policy@opm.gov.  When submitting comments via this email address, place this in the subject line:  RIN 3206-AN49: Proposed Rule Comments-Administrative Leave.  In the body of your message identify the section of the regulations on which you are providing comments. The proposed regulations can be found at  https://www.gpo.gov/fdsys/pkg/FR-2017-07-13/pdf/2017-14712.pdf.  You have until August 14 to act to save your life.

Here’s our latest FELTG comment, if you’re looking for a tone and format:

Dear OPM-

We have previously commented that this proposed rule should be modified so that agencies are encouraged to use Notice Leave in every case in which an employee’s removal is proposed, and that the regulations should be rewritten so that it is easy for this to be done. As drafted in the proposal, it would be exceedingly difficult for an agency to implement Notice Leave. The following rationale is in further support of my previous comment.

When drafting the Civil Service Reform Act of 1978, Congress expressed no intent that an employee whose removal is proposed be retained in a work status during the notice period. In fact, when considering the requirements of the law, it makes no sense. From the day that the supervisor notifies the employee that his removal is being proposed for misconduct, the employee need be given no more than seven days to respond. 5 USC 7513(b)(2).  That means that the deciding official can issue a decision on the proposed removal as early as day eight, after the close of the minimum response period.

It makes absolutely no sense that an agency be required to keep an employee in the workplace after a final decision has been made to fire him. These are individuals who have engaged in misconduct so bad that they deserve to be terminated. Or, they have such significant medical infirmities that they cannot perform the essential functions of their position. It defies any logic that individuals like this should be directed to report to work for 22 days after the decision has been made that they should not be employed. So why did Congress mandate a 30-day notice period if it makes no sense to keep someone in the workplace after the decision has been made to fire them?

I know the answer. And I know it because I am old. I was in the business of federal employment law when this legislation was being developed and debated in 1978. I heard Scotty Campbell, former Civil Service Commissioner and driving force behind the structure of the Reform Act, say that the extra 30 days of pay was to ease the transition of the employee out of government employment; i.e., to give him a chance to find another job. In other words, it was a way of providing something akin to severance pay to the employee as he was being removed. The purpose of the notice period is to provide money to the employee, not to try to get work from the employee.

The law says, “at least 30 days’ advance written notice.” Had Congress intended that the notice period be completed while the employee was in the workplace after the decision was made to fire him, it would have said, “at least 30 days’ advance written notice, during which the employee will remain in the workplace.” It is my opinion that Congress did not add this language because it could not conceive that anyone would think it a good idea to retain a fired employee in a federal worksite for three weeks after the decision had been made to fire him.

Apparently, Congress was mistaken.

The draft rule should be rewritten to empower front line managers to protect the federal workplace once an employee’s removal has been proposed. The rule should be amended in part as follows:

5 CFR 630.1505 Administration of Notice Leave

Whenever an agency proposes the removal of an employee, normally it shall place the employee on Notice Leave. Retaining such an employee in a work status jeopardizes the government’s interest in the safety and integrity of the federal workplace. The authority for imposing Notice Leave should be delegated to the lowest reasonable level within the agency.

Respectfully submitted for your consideration. Wiley@FELTG.com

Reality Check for the New Political Overlords

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By William Wiley, July 11, 2017

We get so many good questions. This one comes from a class participant in our fabulous FELTG FLRA Law Week (next offered in Washington, DC November 13-17):

Dear FELTG Labor Law Semi-Experts (I say “semi” because as you teach, no human on Earth really understands federal labor law)-

I took your FLRA class last spring in Washington, D.C.  (It was very helpful, thanks!)  I’m pretty sure that at some point during the course, you offered that we could send you a question afterwards. I’d like to take you up on your kind offer.

My question is whether (or when?) a local CBA always “trumps” an Agency policy, or if that holding is limited to “localized” policies.  I’m looking at cases such as Broadcasting Board of Governors v. AFGE (66 FLRA 380), that seems to indicate this is well settled.  But, in an environment (such as we have here at my agency), where we have unions that have National Consultation Rights (NCR), I’m trying to reconcile these rulings with my basic understanding of the Union’s very limited rights in NCR, and that the Agency is permitted to make universal policies at a national level as long as they go through NCR (local CBAs be damned).

In other words – if, at a local field center, the local management agrees to terms on, say, office workspace, with their local union, enter into a CBA articulating those provisions, and then later on, the national agency management comes up with a national level policy on office workspace, that is inconsistent with the terms of the CBA, but properly goes through the NCR process.  Which policy controls at the local field center?  The national level Agency policy?  Or the local policy as articulated in the CBA?  It just doesn’t make sense to me that a local manager’s actions at the local level (in signing the CBA) could essentially prevent national management from having a universal policy.

Any thoughts on this?

And our FELTG response. Sad!

Dear FLRA Law Week participant-

Very nice to hear from you. As for your question, the union agreement always trumps an agency’s new policies – even when there are national consultation rights – with only two exceptions:

  1. The agency can demonstrate that the new policy is related to the “necessary functioning” of the agency and the change is in response to an “overriding exigency.” See SEC v. FLRA, 568 F.3d 990 (D.C. Cir., 2009).
  2. The new policy is implementing a new law (the incontrovertible law part of the new policy is effective right away; the agency still must bargain I & I and any flexible parts of the law).

As for your hypothetical, as much as it makes our eyes burn, if local management agrees to office space of a specific size, and the agency head later decrees that office space will be less than that, the agency is obligated to continue the bargained-for office space if and until it can bargain its way out of it.

The example we sometimes use in class is from NIH, one of our favorite clients. Years ago, the Secretary of HHS declared through a new policy that the work spaces within HHS would be smoke-free. He reasoned that given the word “health” in the name of his agency, he should prohibit things that by their very nature are not healthy. Great reasoning for the new policy. However, it conflicted with several local CBAs, including NIH, which had old provisions allowing designated smoking areas. There’s a big billboard-size sign as you enter the NIH main campus outside of DC that says, “Welcome to NIH, a smoke-free environment.” Every time I walk past it, I want to add an * and a footnote that says, “*Unless you’re in the bargaining units for law enforcement officers or fire fighters.”

Deb and I recently taught a program at the Naval Medical Center, Camp Lejeune. Same scenario. Years ago, the Secretary of Defense issued a policy prohibiting smoking in the health care facilities within DoD. Well, the CBA employees at Camp Lejeune are still smoking away because it’s been in their contract forever. Hey, it’s North Carolina. They’ve got to do something with all that tobacco.

The theory is this: When your local management agrees to certain office space terms in the CBA, it is actually acting on behalf of the agency head when doing so. And that agreement controls any later agency heads who come along who would like to see another policy. That’s one of the Big Deals we have to deal with when we get a new administration like we are in the processing of doing now. The new politicals come in thinking that they can shake things up (making America great again) and guys like us have to tell them that Congress passed a law 40 years ago that limits that authority in a unionized environment. The most we can do is propose changes either term or mid-term, then take them to FSIP when the union impasses us. There, at FSIP, President Trump’s seven political appointees – who serve at the pleasure of the President – will no doubt conclude that the agency head’s new policy will be the new CBA provision for office space.

What’s that? You’re telling me that the President recently fired all the FSIP members and has not yet replaced them? Oh, well. I’m sure he’ll get around to it eventually. Because you can’t implement the new policy from on high until you bargain your way out from under it. And you can’t complete bargaining without agreement until we get at least four new FSIP appointees.

The fact that there are national consultation rights does not diminish the obligation to negotiate. Consultation and negotiation are two different things, as you point out. The law is specific as to what must be negotiated (not consulted about). If the new policy included any changes to negotiable working conditions, they must be negotiated.

Not the answer you wanted, not the answer we necessarily want to give. But until Congress does something (Ha!), this is our world. Wiley@FELTG.com

Mandatory Spanking

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By William Wiley, July 5, 2017

Sometimes an analogy helps us think about the law. Let’s try that by imagining that you live in a small town and that you’ve made the same mistake as has this author of having children (????).

You received an email earlier today from your fourth-grader’s teacher informing you that little Sophia has once more, for the second time this year, forgotten to do her homework. The email says that you should take “appropriate action.” You’ve already decided that when the homework-skipper gets home from her piano class, you’re going to give her a real talking to. Then, the phone rings:

You:     Hello, Smith residence.

Caller: Mrs. Smith, this is Officer O’Reilly. I’m the Discipline Officer here at Trump Elementary where you daughter, Sophia, is a student.

You:     Yes, Officer. What can I do for you?

Caller:  This just a routine call to make sure that you got the notification about your daughter’s misconduct today and to make sure that you plan to spank her before she goes to bed tonight.

You:     Why, Officer, I have no intention of spanking Sophia. All she did was forget to turn in her homework.

Caller:  I’m sorry, Mrs. Smith, but you’ll have to spank your daughter, at least three swats. You see, this is her second offense this term and Trump’s Table of Punishments calls for a minimum of spanking in a situation like this.

You:     But I don’t want to spank my daughter. I’m sure that I can get her to obey the rules some other way.

Caller:  Sorry, Mrs. Smith. I’m afraid you’ll have to spank her. All the other parents spank their children for a second offense. And our records show that two years ago, you spanked your son Jacob the second time he was late returning from recess. Our goal is consistency of punishment.

You: Consistency of punishment?

Caller:  Yes, that’s right. Punishment consistency has been declared to be the main goal of the Trump discipline program. I’m afraid that either you’ll have to spank her or we’ll have to send someone out to spank her for you.

You: You would do that? Even if I think I can correct her behavior otherwise?

Caller:  Of course. We’re interested in punishment consistency. We’re not interested in what you think might work with your child. We want to make sure that all children are treated the same, whether they need to be, or not. You don’t have a problem with that, do you? Because if you do, I just might have to refer to the Parental Table of Punishments to see if there’s something in there we need to do with you.

Pretty scary hypothetical, isn’t it, this idea that you have to punish your misbehaving kids at some preordained level for the sole purpose of consistency? Who made up this requirement that punishment must be consistent to be fair? Doesn’t it make more sense to let parents decide for themselves how to try to correct their child’s behavior, even if they choose a different method than their neighbors might use? Aren’t we really more interested in the conduct being corrected than in whether various parents use the same methods of correction?

Apparently, Congress is not. In an effort to micro-manage how federal agencies run themselves, the House recently approved HR 2131, a bill that would require DHS to take specific action to “improve” consistency in employee discipline throughout the 22 various departments and agencies that comprise DHS. As far as we can tell, it has done this without any proof that discipline is now being administered inconsistently or that consistency of penalty will somehow improve the performance of DHS employees. Some would say that it appears to have passed a bill that “sounds good,” but in fact has no value and will create an additional burden for DHS supervisors trying to hold employees accountable for their misconduct.

As you regular readers will remember, MSPB got sucked into the penalty-consistency trap back in 2010 when it issued The Terrible Trilogy, three lead decisions that for the first time in the history of our republic held that penalty consistency was the most important aspect of deciding whether a removal should be affirmed on appeal. From 2010 to 2014, the Board routinely and sometimes on its own motion demanded to know whether anyone else at the removing agency had ever done anything similar to the misconduct which was the basis for the firing on appeal. If there was, and the supervisor of that comparator had chosen not to fire the employee, the removal on appeal was set aside. Thank goodness that Sole Remaining Board Member Robbins rejected that view when he was appointed in 2012, realizing the untenable burden that mandating penalty consistency places on management officials. Under his leadership, and with the help of the changing mind of one of the other Board members, the Trilogy has been significantly undermined. Experienced practitioners know that today we are back to just about where we were before the Trilogy: as long as removal is a reasonable penalty, it will not be set aside solely because some other supervisor at the agency did not remove his employee who did the same thing.

Too bad that member Robbins isn’t Congressman Robbins. Perhaps if he were, he could have talked some sense into those who voted for HR 2131 because it “sounded good.”

I’m starting to appreciate how lucky we employment law practitioners have been for the past 40 years. In 1978, Congress passed the Civil Service Reform Act, a unified and comprehensive legal structure defining the rights of civil servants and the authority of supervisors in the executive branch to actually run their agencies. Since that time, Congress has done little to change that basic structure, save for the perennial expansion of whistleblower protections (Congress loves them whistleblowers).

Lately, however, Congress seems to have decided that the executive branch agencies are not being run very well, and that Congress knows how to make that branch of the government work better: reduced official time for union representatives, shorter time limits for appeals, no MSPB review of the termination of senior executives, allowing employees to disobey lawful orders if the employee believes that the order violates some rule or regulation, extension of probationary periods, annotation of adverse findings into departed-employee’s records, reduction in an agency’s ability to use administrative leave, clawing back previous cash awards. And now, mandatory penalty consistency. Each of these changes has either already occurred legally or is being talked about as possibly occurring in the future.

This is a stupid way to run a government. Setting aside for a moment the impracticality of some of the recent legislative “fixes” that Congress has considered, it’s just not the way they taught us in high school civics that things were supposed to work. Congress, you’re supposed to provide the governmental goals and the resources to attain those goals. Then, those in the executive branch will do their best to attain those goals, and the judicial branch will decide whether the executive branch has done that fairly. A very neat and tidy system that does not work when a branch of the government without the responsibility to actually do things tries to manage the branch that actually has to provide government services.

Geez, I didn’t intend for this observation about another poorly thought-out piece of civil service legislation to evolve into a rant about the foundations of governmental responsibility. But it is what it is, as the kids say. So take from it what you will, and remember what you are paying for it. Maybe one of you smart readers out there will actually figure out what to do about it. Until then, email your senators and warn them about HR 2131. Hey, if they’re going to try to screw up the civil service one bill at a time, we’ll just have to fight back in the same way. The stakes are too high to do otherwise.

Wiley@FELTG.com

Everybody is a Mitigator

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By William Wiley, June 27, 2017

If you are a repeat-reader of the FELTG newsletter, you know that we believe that agency managers should run the government. Not human resources specialists, not agency counsel, and certainly not some MSPB lawyers ensconced in a governmental ivory tower in Washington, DC (OK, it’s just a red brick six-story building, but you get the point). If we’re going to expect government managers to be held accountable for the government’s work, we should be letting them decide when removal of an employee is warranted, except in the most outlandish cases of over-reaction. In different words, that’s for the most part what the Board’s seminal penalty decision said. See Douglas v. VA, 5 MSPR 280 (1981).

When we see a case in which we think that the Board has over-reached to mitigate a removal, we are fast and furious to beat them up as best we can in a free newsletter. For example, we think that it was crazy for MSPB to require the Postal Service to reinstate a fired employee who had spent her lunch break smoking crack cocaine and marijuana and getting arrested instead of returning to work. And to this day, we do not understand how progressive discipline for an employee who has previously received 7-day and 14-day suspensions should result in a removal mitigated to a 5-day suspension for a third offense (if you need cites for these, come to our seminars). We’re relatively certain that our outspokenness about penalty mitigation has gotten us taken off MSPB’s Christmas party attendee list.

Well, now we’re probably going to be dropped from the mailing list for the Federal Circuit’s Holiday Ball. It seems that those who wear the black robes just off Lafayette Square in DC feel that they are in the better position to decide who deserves to be fired than those line managers held responsible for agency performance. The employee in a recent case before the court was an agency Chief of Police – a supervisory law enforcement officer (LEO). He directed one of his subordinates to misuse a government vehicle by running a personal errand for him. Although he initially lied about the misconduct, he eventually admitted it. The agency and the Board concluded that removal was warranted. However, the Federal Circuit Court of Appeals decided that removal was unreasonable and remanded for the Board to decide a lesser penalty. Tartaglia v. DVA, Fed. Cir. 2016-2226 (June 8, 2017).

In all fairness, DVA and the Board screwed up. They thought that the employee had only four years of service with DVA when he actually had 14 years of service, preceded by 5 years of military service. OK, that’s a mistake, perhaps even a significant mistake, relative to half of Douglas Factor No. 4: Work Record. However, there are 11 ½ other Douglas Factors in play, some of them seriously aggravating:

  1. Supervisors and management officials can be disciplined more seriously than non-supervisors. Cantu v. Treasury, 88 MSPR 253 (2001), Edwards v. USPS, 116 MSPR 173 (2010).
  2. Law enforcement officers can be disciplined more seriously than non-LEOs. Hanker v. Treasury, 73 MSPR 159 (1997).
  3. LEOs who engage in dishonest conduct that results in discipline may become Giglio impaired, thereby reducing or eliminating their ability to testify as witnesses in criminal trials. See Taylor v. Air Force, MSPB No. DC-0752-12-0296-I-1 (NP)(2013).

Does a 15-year mistake in consideration of the individual’s employment history mean he should not be fired for directing his subordinate to engage in illegal behavior? Well, here at FELTG, we do not claim to know. But with all due respect, neither do the three judges who heard this appeal in the Federal Circuit. We do know that a plain old run-of-the-mill non-supervisory federal employee is supposed to get a minimum 30-day suspension for the statutory misuse of a government vehicle. If that is the base line, what do we go up to for a Police Chief who lied about his misconduct initially, and engaged a subordinate employee in an illegal act? Given that long suspensions are harmful to the agency as often as they are to an employee, and given that a long suspension is no more likely to curtail future misconduct than a shorter one, what in the world is the court thinking is appropriate in this situation? The court’s remand expressly provides that removal is an excessive penalty. What does the court think is left?

For whatever it’s worth, we’ve argued for several FELTG years that when the Board or court finds a penalty to be excessive, rather than trying to apply Douglas factors after some of the specifications have failed, the case should be remanded to the agency for redetermination of the penalty given the facts remaining in the case. As some of the charges and specifications fell out on appeal, that’s what should have been done in this case, in our humble opinion.

So far, we’re looking at about two years of back pay with interest, plus what will no doubt be a substantial (and well-deserved) lawyer fee claim. With the Board down to only one member, who knows when the remand decision will be issued that actually results in a ruling on an appropriate penalty. The back pay will continue to accrue for many months.

Hey, DVA; we love you guys. If you were to ask us for advice (which you haven’t because we charge excessively outrageous fees for our opinions), we’d suggest that you cancel the removal, reinstate Mr. Tartaglia immediately, and forget about waiting for a remand decision from the Board on some lesser penalty. Cut your losses. Get some work out of the guy in exchange for the money you’ll have to pay him anyway. Yes, you got scrogged by the court. But did we give up when the Germans bombed Pearl Harbor? (Warning: link contains language NSFW). Heck no we didn’t. Just put this one on the cases-we-shouldn’t-have-lost list and move on. Soon, you’ll have a new discipline system, and you’ll never have to worry about mitigation again. Wiley@FELTG.com

 

 

 

A View of the Future (Some Might Say a Dark View)

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By William Wiley, June 20, 2017

It has begun. Congress and the White House (and a large group of our fellow citizens) seem to think that it is too hard to fire a bad federal employee. From the pages of this newsletter over the years, you’ve heard us shouting from the rooftops that it really isn’t that hard, if you know what you’re doing. And here at the Federal Employment Law Training Group, we’ve done everything we can, short of compulsory servitude, to help you guys know what to do.

Unfortunately, our efforts fell short. Even though the Civil Service Reform Act of 1978 gave agencies terrific tools to hold bad employees accountable while honoring civil servant rights and protections, Congress has felt the need to change those tools, at least at one agency. And it has been widely reported by those inside Capitol Hill that if Congress comes to conclude that these changes actually make accountability easier, Congress will be acting to make these new rules apply to everybody – at least everybody currently a civil servant appointed under Title V.

Last week, the President signed into law the Department of Veterans Affairs Accountability and Whistleblower Protection Act of 2017. That piece of legislation in large part grew out of Congress’s frustration with the apparent inability of the Secretary of Veterans Affairs to remove and otherwise punish DVA employees who allegedly caused veterans to suffer because of poor management within the veteran’s health care system. The law is supposed to “fix” some of the systemic problems in the oversight of discipline in DVA, based in part on a belief by Congress that MSPB has done a poor job of defending our veterans and neglecting to uphold the disciplining of certain senior executives.

Here at good old FELTG, we don’t agree with this premise, but our opinions are worth exactly what you pay for them.

Everybody in our business, or even interested in our business, needs to know the changes that this legislation has created. Even though most of us do not work at DVA and will not be directly affected by the new law, what we see in this act might very well soon be applicable to the entire federal service. So, never send to know for whom the bell tolls; it tolls for thee (that’s John Donne, in case you were wondering).

There are new requirements that will apply to DVA besides the ones we identify below. For example, DVA will have to establish its own internal whistleblower protection unit with a Presidential appointee running it, independent of OGC. But in this article, we’re comparing the procedural changes that apply for those of us down here in the weeds trying to hold employees accountable. If you need more details than we are providing, make yourself delirious reading the new law, found at https://www.congress.gov/bill/115th-congress/senate-bill/1094/text.

Before we get into the details, we have to point out an amazing bit of word-twisting in this legislation (thanks to an astute participant in our MSPB Law Week seminar we just finished in San Francisco). Whereas nearly every other piece of legislation ever written relative to the civil service speaks of “days” (by common understanding to mean “calendar days”), this act sometimes specifies “business days” (b-days) and at other times simply specifies “days” (for purposes of this article, to be known as c-days.) In the charts below, we’re going to harmonize days for comparison purposes, so that we’re comparing apples to apples. You purists out there can do you own conversions from c-days to b-days, if that makes you happier.

So why the added confusing of specifying b-days sometimes and c-days at other times? Ah, my little Pollyannas. Welcome to the world of politically-created reality. If I say that something has been reduced from 30 days to 15 days, that sounds like a lot of reduction. However, if I say that something has been reduced from 22 days to 15 days (30 c-days are 22 b-days), not so much. It appears to this writer that someone wanted it to look like a greater change was being made by this new law than is really being made. We leave it up to you to come up with a better theory.

Procedures for Removing Bad Federal Employees; a Comparison

  Current Procedures DVA SES DVA GS
Notice of proposed removal All evidence and a right to representation Same Same
Minimum response to proposal period 5 b-days 7 b-days 7 b-days
Minimum time to implement removal 22 b-days 15 b-days 15 b-days
Maximum period to decide to remove None 15 b-days 15 b-days
Appeal MSPB DVA grievance MSPB
Time to file appeal 22 b-days [not specified] 10 b-days
Evidence burden Preponderance (51%) [not specified] Substantial (±40%)
Time to decide appeal 120 c-days (goal) 21 c-days 180 c-days (firm)
Mitigation authority? Yes [not specified] No
Challenge to appeal Fed Circuit Court Fed District Court Fed Circuit Court

There are some amazing little nuggets tucked away in here, if you know what to look for. As an example, by using the confusing b-day language, the law actually increases the minimum response time for a removal (and also for a short suspension). Dollars to donuts that was not the intent of the drafters. Separately, the language placing a time limit on MSPB’s review of an appeal by a GS employee refers to the decision by the “administrative judge.” Well, what about the time required for the three Board members to consider the petition for review of the AJ’s decision? Or, does the law’s language that the 180 c-day time limit applies to “a final and complete decision” of the AJ mean that there is no AJ decision review by the Board members?

From an employment law position, one of the most significant changes here is the reduction of the agency’s burden of proof in a misconduct removal from a preponderance of the evidence to the lower substantial evidence standard. Yet even if legally significant, a quick review of the reversed DVA cases that got Congress all riled up does not reveal a problem with the preponderance standard of proof. For example, in Graves v. DVA, CH-0707016-0180-J-1 (2016), an SES demotion case, the judge believed DVA’s evidence and upheld the charge. However, she found the penalty to be unreasonable because a superior to the appellant did the same thing that the appellant did, and he was not disciplined. I’m running stupid as to how lowering the evidence standard from preponderance to substantial would have caused the judge to reach a different conclusion. The judge agreed with the facts, but did not agree with DVA’s judgment about what to do with the facts.

By far, the most significant change for those of us on the front line is the no-mitigation of the penalty change. Probably half of the effort that goes into a removal case these days is defending the penalty. The stupid disparate-penalty Terrible Trilogy philosophy that the Board members dreamed up in 2010 has scared us all so much that agencies have become afraid to fire people because some other employee somewhere else in the agency did the same thing and was only suspended. Apparently, the Douglas Factors will no longer apply. Or, will they? Since the Board can no longer mitigate a penalty, will it just start setting aside the removal altogether if it disagrees with the seriousness of the charge? Or, will it uphold a removal for a five-minute tardy, outstanding performer, 20-year clean record, if DVA concludes that removal is the proper penalty? So many questions to be answered as the case law develops.

And that won’t be happening anytime soon because the Board decision-making machinery has been inoperable since the first week of the year. If we have usable precedent by this time next year, I’ll be amazed.

Finally, there are some statutory “fixes” in here that make no sense. For example, the act says that, “A covered individual so demoted may not be placed on administrative leave during the period during which an appeal (if any) under this section is ongoing, and may only receive pay if the covered individual reports for duty or is approved to use accrued unused annual, sick, family medical, military, or court leave.” Well, gee willikers, we never placed employees on administrative leave in that situation anyway. Might as well pass a law that says, “Things that fall must fall down, not up.”

It appears to us here at FELTG that the drafters of this legislation do not understand our system. I mean no disrespect by that statement as ours is a complicated statute. However, if we’re going to see any new big across-government legislative fixes to federal employment laws, for the good of our country, let’s all hope that the staffers on Capitol Hill who draft legislation like this take the time to figure out what changes will really make a difference. This is not something to gut-out and do what feels good. This is something crying out for professional thought and deep experience.

Operators are standing by: 1-888-at-FELTG. The first six minutes of consultation are free. Wiley@FELTG.com.

More Regarding Dangerous Employees in the Workplace

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By William Wiley, June 6, 2017

Questions; we get thoughtful and important questions. The one below came about because of our recent newsletter article that provided guidance as to what to do when a supervisor is confronted with an employee who threatens suicide.

Good Morning – and thanks for your May 17, 2017 newsletter. 

Mr. Wiley’s article provided some clear guidance for those scenarios in which a supervisor has been able to conclude that it is more likely than not that the employee is a danger to herself or to others in the workplace.  The question that often comes up, however, is how to make that initial assessment.  Is it enough for an employee to break down crying and talk about suicide for us to decide that it is more likely than not that the employee is a danger to herself or others in the workplace?  What if the employee simply has an emotional meltdown that s/he states is due to being stressed about increased workload and acts out (crying, yelling, kicking office furniture) but does not mention suicide?  In short, does the employee need to mention suicide before these options kick in?

If you can provide some guidance on this issue, it would be most appreciated. 

And our super-responsive FELTG answer is as follows:

Dear Reader-

Thanks for your question. This is serious stuff and I’m glad that you’re working on it.

The standard for preventing someone from coming to work is the frustratingly vague standard of “reasonableness.” Would an objective person viewing the facts as they exist at the moment conclude that it is more likely than not (preponderance) that the employee is a danger to himself or others?

Here’s the good news. The supervisor’s judgment that it is unsafe to allow the employee to remain in the workplace is not easily subjected to challenge. That’s because by keeping the employee in a pay status immediately and during the notice period of a proposed indefinite suspension, you have not constructively suspended the employee. Therefore, no MSPB right to appeal and hopefully no grievance rights, either (depends on your CBA and agency grievance policy).

Once the decision to implement the indefinite suspension is issued, the employee can appeal to MSPB. However, by then you should have the employee’s response to the proposal, additional evidence to bolster your conclusion that it was reasonable to exclude him from the workplace.

There is the possibility that the employee could mount a failure-to-accommodate EEO complaint. However, that would be tricky for him to frame, with an answer coming down perhaps years in the future as to whether the supervisor acted reasonably. By then the thing is done and any remedy will most likely be limited.

In addition, employees can always claim that actions like this are whistleblower reprisal, unfair labor practices, or even mistreatment because of veteran’s status. However, those claims place the burden on the employee to prove, and again will be adjudicated far into the future after the immediate danger has been resolved.

Bottom line:  These are life and death situations. In the FELTG world, we always err on the side of saving lives of civil servants. With that in mind, we believe the bar for what is reasonable should be set exceedingly low. If this is a topic of interest to you, attend our training workshop Handling Behavioral Health Issues and Instances of Violence in the Federal Workplace July 26, 2017 in Washington, DC.

By the way, if I were in a policy position in an agency, every attorney, HR specialist, and maybe even front line supervisor would have a prefabricated template that proposes an indefinite suspension and demands medical documentation in cases like this. These are emergency situations that require immediate action. We don’t have time to start from scratch when they occur. The template should require only that the employee’s name and the date be inserted. Then, the proposal should be issued post haste. Wiley@FELTG.com

The End of Times

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By William Wiley, May 23, 2017

It seems as if I spend most of my waking hours in an airplane flying somewhere. Giving all the wait time, the no-computers time, and the just-plain-tired time involved in those odysseys, I have lots of time to think. Lately, I’ve been thinking about why we have civil service protections. As both Capitol Hill and the White House seem intent on modifying or doing away with some or all of those protections, I thought it might be helpful to get some of those 35,000 feet high thoughts out there, should anyone care to consider them.

Since 1912 in our great country, we’ve had laws that protect civil servants from arbitrary or just plain evil mistreatment. Prior to that date, a civil service job was purely patronage. You work for some guy to get elected, that guy will work for you to get a good government job. I’ve even seen ads in old newspapers from the late 1800s in which individuals were advertising that they would be willing to pay hard cash for a good government position. Once employed, you could be fired for any reason: politics, misconduct, or a bad haircut. It didn’t really matter.

Congress eventually decided it didn’t like this approach to government employment. Therefore, it passed the Lloyd-La Follette Act early in the last century, from that point forward guaranteeing that federal employees could be fired only for such cause as supported an efficient government. That’s where we got the rule requiring nexus between misconduct and a government function, and the right of federal employees to have bad hair (unless their haircut is somehow related to the work they perform as a government worker, of course).

The theory of our civil service embodied in the Lloyd-La Follette Act is this: our country needs a cadre of meritorious employees who work for the people, not necessarily for any political party. Therefore, federal workers need some sort of protection from mistreatment (e.g., firing) by the political appointees who are brought into government to temporarily run it during any particular administration. The trade-off for federal workers is that they can no longer get a government job just because of their political connections, their political activities are restricted by the Hatch Act, and they cannot buy jobs off of Craig’s list. Those of us who have taken the oath and become civil servants have accepted this as a fair deal.

With this theory in mind, consider a hypothetical scenario for a moment. Let’s say that you are an Evil Political Overlord (EPO) appointed by the President to run some part of a federal agency. Then, pretend that you are intent on infusing your own personal political agenda into your agency, regardless of the civil service protections and in contravention of the principle embedded in the Lloyd-La Follette Act. Which of the following groups of employees would you most want to be able to fire without having to explain yourself outside of your agency?

  1. Senior executives who run the place, or
  2. Rank and file employees who do the grunt work

Well, if you’re like most EPOs, I have to believe that you would want the unreviewable right to fire your top bosses, the senior executives who supervise everyone else and who tell them what to do. Why bother with trying to get the hundreds of janitors and the file clerks to do your evil bidding when you can simply get one of your subordinate executives to do it for you.

The Sith Emperor in Star Wars had to control only his senior executive Darth Vader to rule large parts of the Empire. Boy, oh, boy … did those guys have a tough performance appraisal program.

Now that we’ve played with our hypothetical, may I be among the first to welcome you to the bold new world of the federal civil service. Recently, eight well-meaning senators introduced a bill entitled the “Department of Veterans Affairs Accountability and Whistleblower Protection Act of 2017.” If enacted, that legislation would set aside a fundamental principle of our civil service, that federal employees who are fired have a basic right to have someone outside of their employing agency review the reasons for that firing, and determine if the employee has been treated fairly. For the last 40 years, that outside review has been conducted by the independent US Merit Systems Protection Board. Here at FELTG, we are among the first to criticize MSPB when we think they have missed something. At the same time, we are Number One in defending the concept of Board overview of removals and other serious discipline as a vital component of a protected core federal workforce. We think that MSPB is trying to do what Senator Robert La Follette wanted back in 1912 when he drafted legislation to de-politicize the federal civil service.

Ah, I can just hear all you smarty-pants practitioners out there, snickering among yourselves that Old Bill is once again crying wolf, stirring up concerns where concern is not warranted. This bill applies ONLY to Title 38 employees and ONLY to SES-level individuals at the Department of Veterans Affairs. Since that is a miniscule part of the two hundred million-plus federal workforce, why sound the alarm now? Congress would never take away the rights of other civil servants to challenge their dismissals outside of their employing agency.

Well, my friends, think of it this way. If you’re the Secretary of – say – Defense (or Homeland Security or Whatever), and you’re playing golf with your buddy who happens to be the Secretary of Veterans Affairs, how are you going to take it when he regales you with stories of how easy it is for him to fire executives while you’re over at DoD suffering through layers of MSPB appeals/discovery/hearings just to get rid of one of those little devils? Are you going to say, “Gee, Dave, I’m so happy for you. Clearly, it’s more important for you to have greater control of your executive service than it is for me. I couldn’t possibly go to my oversight committee and ask for a similar arrangement. Why, I almost look forward to the administrative hurdles awaiting me when I need to fire somebody.”

And if you are the Secretary of Veterans Affairs, how long will it take you to realize that if it’s good enough for your senior executives, why wouldn’t it be good enough for your other employees? Heck, just think of all the money you can save if you don’t have to subscribe to cyberFEDS© any more.

Here at FELTG, we are GS-zeros. We have no clout and we make no decisions for the government. If the Big Guys who do make big decisions decide that the civil service has had a good run and we should move on to agency-limited review rights, so be it. Maybe that’s a better way to run America than we have had the past hundred years or so. We just hope that the decision-makers understand fully the path they are opening up, and the slipperiness of taking away the external appeal rights of even a small group of career federal employees. If this legislation becomes law, the endtime for our civil service will be a step closer than it is today. To quote Lord Vader, “I sense something; a presence I have not felt since …” Perhaps he was sensing the end. Wiley@FELTG.com

A Potentially Devastating Impending Change

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By William Wiley, May 9, 2017

Forever, it has been black letter law in the federal workplace that an employee has to do what his supervisor tells him to do. With exceedingly rare exception (involving safety, Constitutional rights, and illegality), if a supervisor tells an employee to do something, the employee has to do it. If he doesn’t, he can be disciplined for Insubordination, perhaps even be fired.

This concept is embodied in a term often heard in a unionized workplace, “Work now; grieve later.” If an employee is confronted with an order that she believes to be improper – perhaps the order requires her to forego a break that she believes she is entitled to under the collective bargaining agreement – the employee is supposed to obey the order, then challenge the order after the fact by filing a grievance. In that balanced approach, the supervisor still gets done what needs to be done, and the employee still gets redress to correct any harm that might have occurred because of the order if it is found to have been improper after the fact.

Think what it would be like otherwise. What if an employee could disobey an order he felt was wrong? The supervisor orders the employee to do something. If the employee believed that the order violated the union-management collective bargaining agreement or some other rule, the employee could refuse to obey the order without fear of discipline. Perhaps the order would have to be subjected to oversight in the grievance procedure, and once adjudicated as consistent with the CBA, the employee would then have to obey it. Can you imagine the disruption that this would cause in the federal workplace, if supervisory orders had to be adjudicated as proper before they could be enforced?

Add to this the reality that CBAs and regulations are subject to various interpretations, that one person’s honest belief in what the rule means is different from what another person believes in good faith the rule means. If a supervisor gives an order, in my experience the supervisor believes that it is a proper order. If the employee concludes that based on his own interpretation the order violates some policy, should we really delay obedience to the order until the disagreement is resolved by an arbitrator or a judge? Holy-moly. And the public thinks that the government is inefficient as it is. Just wait until they see all those civil servants waiting around until their boss’s orders are litigated as proper before they will be obeyed.

Well, buckle up. Congress is on a path to make this hellscape scenario a reality in the federal government. Recently, the House passed HR 657, the “Follow the Rules Act,” amending 5 USC 2302(b)(9). That legislation would make it illegal for an agency to discipline a disobedient employee who was insubordinate because the employee refused to obey an order that violated a “rule or regulation.”  Let’s think this change through for a minute, from the perspective of those of us with significant experience in the federal civil service:

  • The media buzz around the passage of this bill was that it would increase protections for whistleblowers. Wrong. Whistleblower rights are embedded in 2302(b)(8). This legislation would amend 2302(b)(9). If enacted, it will apply to EVERYONE, not just those federal employees who blow the whistle.
  • If an employee reads this amendment (if the Senate and the President make this bill into a law), she would be comfortable believing that she could refuse to obey an order that she believes violates a “rule or regulation.” Well, what if it turns out she is wrong? What if her honest belief about what the order meant was simply mistaken? If she is fired for insubordination, if on appeal her argument that the order violated a rule is not affirmed, she has effectively bet her job that her interpretation was correct at the moment she chose to be insubordinate. Why in the world would we want to entice federal employees into this high-risk gamble with their livelihood when there are other ways to protect them from abuse?
  • The amendment is silent about the definition of the words “rule” and “regulation.” As we have something called the “Code of Federal Regulations,” it’s relatively easy to recognize “regulation” as referring to that body of guidance. But what is a “rule” exactly? Fortunately, the word “rule” has been in law since 1978. It can be found in the paragraph immediately above (b)(9), the paragraph that defines a whistleblower as someone who, among other things, discloses a violation of “law, rule, or regulation.” MSPB recently defined the word “rule” for this purpose as “established or authoritative standards for conduct or behavior.” In one case, it found that a simple agency memorandum could constitute a rule. See Chavez v. DVA, 120 MSPR 285 (2013); see also Raiszadeh v. DHS, DC-0752-12-0648-I-2 (2015)(NP).
  • If the Board were to use that same interpretation of “rule” for the purpose of enforcing the HR 657 amendment, just think of all the potential that an employee has for believing that a supervisor’s order violates a “rule.” Double holy-moly.
  • Again, looking to whistleblower protection law for guidance about how to interpret the proposed amendment to (b)(9), an employee is protected as a whistleblower if he discloses a violation of “law, rule, or regulation” even if he is mistaken as to whether there actually has been a violation of law, rule, or regulation! All the whistleblower needs is a “good-faith belief” that there has been a violation. See Herman v. DoJ, 115 MSPR 386 (2011). What if we were to apply that same principle to cases that arise under the proposed amendment? Do we really want to allow civil servants to disobey supervisory orders that conform with law, rule, and regulation simply because the employee has a good-faith belief that the order is improper?

Here at FELTG, we try our best not to do too much of that “The sky is falling!” stuff, raising concerns where there really are none to be raised. We hesitate to sound the alarm too many time. But this is one that might be worth your attention. Know any Senators? If so, please let them know that this thing is coming and that it has repercussions that are not being recognized. Buddies with The Big Guy? Next time you’re on the links, maybe mention that this might be a good one to veto. Because if this bill becomes law, it will legitimize and protect every federal employee who thinks his supervisor is an idiot.

And I hear that there are a lot of those around. Wiley@FELTG.com