Time for FELTG to Start Advising our New President

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By William Wiley

It’s that time again. We’re about to get a new face in the White House and a fresh breed of political overlords in each agency. Even the folks on Capitol Hill appear to be ready for a shake up. Hopefully, the new folks will take a few minutes to listen to us old guys before they start making seismic changes to our civil service.

As we here at FELTG claim rights to the heritage of some of the oldest folks in this business, we also claim the right – on your behalf – to tell the new leadership what’s working and what’s not working in this game of running the government. So expect to see several upcoming articles, intended for our new President, based on decades of (good and bad) experience, designed to make the government more effective and efficient while simultaneously recognizing long-standing employee rights and responsibilities.

To kick off our series, let’s start with one of our favorite topics: accountability. If you’ve participated in our supervisory program UnCivil Servant, you know that the subtitle for our textbook is Holding Government Employees Accountable for Performance and Conduct. We are all about accountability here at FELTG, from the bottom to the top.

But today, our focus is not on employee accountability, it’s on agency accountability. We’re looking at a question of accountability and responsibility that bedevils us all and drags down our civil service and our government:

What agency is responsible for the abysmal success rate government managers have when they fire employees?

Yes, abysmal. As we’ve written about in this newsletter before, MSPB should be upholding 100% of removals that managers implement. That’s because MSPB sets aside removals only when it finds that the agency made a mistake, and agencies have no business making mistakes (and thereby violating an employee’s rights) in any cases at all, save for the occasional unexpected change in law that occurs subsequent to the removal.

So exactly what is this less-than-100% rate that deserves the adjective “abysmal?” Well, according to the latest statistics and public pronouncements by MSPB’s current leadership, the Board finds fault and sets aside adverse action removals in 25% of appeals. That’s right. After spending the past 40 years learning the foundational civil service removal law, agencies still screw up one out of four cases.

That’s just terrible. Think of all the taxpayer dollars wasted on back pay and attorney fees. Add to that the agency resources that are wasted when an appealed action is set aside. Think of all the hundreds of lives disrupted each year by an unjust removal. If one out of four appealed removals is unwarranted, extrapolate that failure rate to all those employees who were fired, and who didn’t have the money, stamina, or wherewithal to make it through the appellate process so that MSPB could reverse their firing. And think of all the employees who should have been fired who were not because management looked at a success rates of only 75% and decided that it wasn’t worth the risk to fire them.

Now that I think about it, “abysmal” might not be strong enough.

If you ran a company, what would you do if you realized you had a 25% failure rate? 25% of your cars fell apart? 25% of your airplanes didn’t land? 25% of your pizzas made people sick? Would you sit back and say to yourself, “Well, at least 75% of my clients didn’t die.” No, you’d put somebody in charge of fixing the situation and then hold them accountable for a fix.

So who is responsible for fixing the government’s horrible success rate before MSPB? Nobody, as far as we can tell. Oh, here at FELTG we do what we can, but we don’t really have the responsibility to do it. We do it because it’s the right thing to do, and because our wonderful clients keep inviting us to do it. But really, shouldn’t there be a government entity held responsible for doing whatever it takes to make sure agencies fire people properly, to improve that success rate from 75% to something close to 99%?

And that, Madam/Mister President-to-Be is our first major recommendation. Put somebody in charge of improving the government’s success rate in removal actions. Don’t leave it up to individual agencies to know what to do. As we’ve discussed previously, too many employment law practitioners are still making basic mistakes, even though we’ve known that they were mistakes for almost a quarter of a century (don’t make me talk about “conjunctive charges” again).

And whomever/whatever you put in charge, hold them accountable. If the government’s success rate goes up, then that’s good. But if it stays the same or (god forbid) gets worse, sack them and get someone else. Accountability is too important not to hold someone accountable for it. Wiley@FELTG.com

You Don’t Know Discipline

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By William Wiley

Whether you are a supervisor, attorney, human resources specialist, or union representative, many readers of this newsletter are in the business of employee accountability. Discipline is a major tool in the world of employee accountability. Yet, as much as we deal with it, and as important as it is in many ways, discipline is not an easy thing to define. And its definitions can be exceedingly important, varying from one forum to another. In this article, we here at FELTG try to sort them out for you.

MSPB: What is and is not discipline is tremendously important in the world of MSPB appeals. As every practitioner knows, when an agency is defending a removal penalty as being reasonable, the agency relies on the fabulous and famous Douglas Factors. Otherwise known as “penalty defense” factors, agencies who remove employees have had to analyze these 12 factors since 1981 to explain to the Board why the employee deserved to be fired rather than receive some lesser penalty.

Factor 3 in that list of mandatory factor consideration is the employee’s prior discipline history. The theory is that an employee who the supervisor has previously disciplined warrants a more severe penalty for a subsequent infraction than a similar employee who has not been given the benefit of discipline and a chance to learn from her mistakes. This theory of discipline is well established and often goes by the name “progressive discipline.”

To apply the theory of progressive discipline in support of a removal, it is critical to know what counts as discipline and what does not. In other words, we need a definition of a disciplinary act to distinguish “true” discipline from some lesser act on the part of the supervisor. Unfortunately, Congress did not see fit to define discipline in law. Fortunately, the Federal Circuit Court of Appeals early-on stepped into the breach and defined discipline for the purpose applying progressive discipline to defend a removal as having three mandatory characteristics:

  1. It must be in writing,
  2. It must be grievable, and
  3. It must be stored in an official employee file.

Bolling v. Air Force, 9 MSPR 335 (1981)

Universally throughout government, there are three documents that meet these criteria in support of a removal when applying the Douglas Factors. The Terrific Three are:

  1. Reprimand
  2. Suspension
  3. Demotion/Removal

By OPM regulations, these three documents are written, challengeable, and stored in an employee’s Official Personnel Folder, although somewhat briefly in the case of a reprimand. If these were the only supervisory actions used to correct behavior, the world would be a simpler and better place. In fact, that’s exactly what we teach in the FELTG supervisory training classes we present. Stay with these three, and your life will be simpler and your actions more defensible.

Unfortunately, some agency policy makers and discipline advisors have chosen to add other actions to the list of options that a supervisor has when trying to obtain employee compliance with a rule: warnings, counselings, admonishments, letters of expectation, letters of requirement, etc. I ran into a DoD agency many years ago that even had something officially called an “Oral Admonishment Reduced to Writing.” Sometimes one or more of these is listed in the agency’s Table of Penalties, sometimes in a collective bargaining agreement, and sometimes they have been used historically; therefore, they are still used today.

The overriding problem when we use these extra options is that there is no universal definition for them like there is for the Terrific Three. For example, when you give an Admonishment, can you use it for the purpose of applying the theory of Douglas Factor 3, progressive discipline? Well, we don’t know until we apply the Bolling criteria. In my experience, sometimes an Admonishment meets the criteria, but sometimes not. These extra options create a potential problem on appeal because, as every seasoned practitioner knows, the more opportunity you give yourself to make a mistake, the more likely it is that you will indeed make a mistake. There is a cost to using extra options that are not universally recognized when a case is challenged to a judge or to the Board. Every adverse thing you do to an employee can be challenged through the EEO complaint system. Why would you do more than necessary since the more you do, the more there is to become the subject of a complaint?

Costs aren’t necessarily to be avoided, however. One should always assess the potential benefits against the projected additional costs. So what’s the legal benefit of using any of these non-defined extra options?

There are none.

Oh, every now and then, someone in one of our classes will say that Letters of Warning and Letters of Counseling put the employee on notice of the rule, one of the Five Elements of Discipline. Yeah, well so does an email that states the rule, “Bill, be at your desk by 8:00 AM every morning.” And an email like this is not an “adverse action” that might have to be defended in a grievance or complaint, nor will it be confused with “prior discipline.” So the very best practice, by far, is to stick to the Terrific Three, avoid any creative other options, and your life will be much simpler and just as powerful. They are discipline.

OSC:  The US Office of Special Counsel is responsible for protecting whistleblowers against reprisal “personnel actions” taken by agency managers. We know that any of the Terrific Three counts as a personnel action for the purpose of this protection. But what about Admonishments? Letters of Counseling? If you give me a Letter of Warning, is it possible for OSC to conclude that you have reprised against me for whistleblowing? If OSC fails to act, might I convince an MSPB judge or the Board itself through an Individual Right of Action appeal that you are indeed a Whistleblower Repriser? And of course any failure to find reprisal by the Board can be challenged by me to any numbered federal circuit court of appeal in which I can establish jurisdiction, ultimately coming to rest on the desk of the Clerk at the US Supreme Court, if I have the patience and can figure out the forms. Yes, it is highly important to know what constitutes a disciplinary “personnel action” for the purpose of an OSC investigation and re-primal-claim resolution.

Unfortunately, the courts have come up with a different way of figuring this one out. Instead of relying on the Bolling criteria as an indicator of what counts as a disciplinary personnel action and what does not, the Federal Circuit has decided that it will look to the specific words of the contested document, whether it is called a Warning or Admonishment or something else. If the document a) accuses the employee of prior misconduct and b) threatens a suspension or removal in the future if the misconduct is repeated, then it is a “personnel action” for the purpose of allowing the employee to pursue a whistleblower reprisal claim. Ingram v. Army, Fed. Cir. No. 2015-3110 (August 10, 2015).

Here are two Letters of Admonishment:

A. “Bill, I admonish you to turn out the lights when you leave for the day.”

B. “Bill, I admonish you to turn out the lights when you leave for the day. If you don’t, next time I will reprimand you.”

Option B can take the employee through an OSC investigation, discovery and a hearing at MSPB, an appeal to the three Board members, to a federal circuit court, and finally to the Supremes. Option A takes him nowhere. These things, whatever you call them, have no value. Why in the world would an agency want to open up the possibility of this sort of confusion and extended litigation for something that is of no benefit and can be easily avoided? To paraphrase First Lady Nancy Reagan, “Just say no to extra options.” Focus on the Terrific Three. Learn to do what counts and what works.

EEOC:  The Commission uses yet another standard when assessing whether an agency has done something to an employee in reprisal for her EEO activity, or her membership in a protected category; race, sex, age, etc. Whereas MSPB is concerned with Bolling disciplinary actions, and OSC is concerned with the broader concept of “personnel actions,” EEOC stands up to protect federal employees from the super-broad “adverse employment actions.” See Medina v. Henderson, No. 98-5471, 1999 U.S. App. LEXIS 11042, 1999 WL 325497 (D.C. Cir. Apr. 30, 1999). Without doubt, EEOC considers reprimands, suspensions, and demotions to be adverse employment actions. But what about these Extra Options? If you give me a Letter of Counseling, can I file an EEO complaint against you? (Yes you can; e.g., Zenobia K., Complainant, v. DLA, EEOC No. 0120142873, July 15, 2016)

There is a surprising exception to the EEOC definition of adverse employment actions: PIP initiation letters. Many years ago, EEOC decided that since the initiation of a PIP is not itself adverse, but rather a preliminary act to a possible adverse employment action down the road, the initiation of a a performance Improvement Plan cannot be the subject of a discrimination complaint. A tip of our collective hats to the Commission for that good-sense ruling: e.g., Lopez v. Agriculture, EEOC No. 01A04897 (2000).

Bottom Line:  The minimum actions necessary to hold a federal civil servant accountable are significant in number and degree. Adding Extra Options to a collective bargaining agreement, agency policy, or individual counselor’s practice does the agency no good and carries with it the possibility wasted resources and appeal loss. Leonardo de Vinci once said, “Simplicity is the ultimate sophistication.” He would have fit in well here at FELTG.

wiley@feltg.com

 

What Should be Done About This Rating?

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By William Wiley

Many of us use TripAdvisor or Yelp when we’re trying to decide where to have dinner. If we find ratings of four- and five-stars, we feel comfortable that the place will have decent-to-better food. However, if you’re like me, you avoid like the plague (or botulism) any place that’s rated primarily one- or two-stars. An eating establishment that is rated only one- or two-stars by its customers must have something seriously wrong with it.

So what would you say about a federal agency that asks its customers to rate it on Courtesy and Results on a five-star scale with:

** = Dissatisfied

*    = Very Dissatisfied

And 87% of the ratings are only one- or two-stars? What would you say if you found out that nearly half of the ratings were only one-star, that just under 50% of the citizens who had gone to that agency for help during FY-2015 were Very Dissatisfied with the Courtesy and Results they received? Would you not want to find out what was causing the low ratings, so you could understand better if something could be done to improve the situation?

Of course you would. You wouldn’t be staying in business very long as a private company with abysmally low ratings like that. We certainly should not expect less from our government than we do from a private business, at least on things like courtesy.

Historical Note: Did you know that President Jimmy Carter thought that courtesy towards the public on behalf of a federal agency was so important that he even had “discourtesy” added to the Civil Service Reform Act of 1978 as a specific type of misconduct warranting a suspension? Did you know that discourtesy is the ONLY act of misconduct specified in the CSRA that warrants discipline? Check it out: 5 USC 7503(a).

Well, the agency that has recently disclosed in its annual report to Congress that it was rated one-sies and two-sies by its Very Dissatisfied clientele last year is … drum roll, please … the US Office of Special Counsel. Yes, if you manage to dig through the first pages of its fascinating 52-page annual report (https://osc.gov/Resources/FINAL-FY-2015-Annual-Report.pdf) , way back at the bottom on page 44, you will find the results of the OSC client survey that contains these troublesome ratings.

It seems obvious that ratings like this are the result of either of two things:

  1. Discourteous behavior on the part of OSC employees, or
  2. An OSC clientele that is particularly sensitive to courtesy.

When dealing with OSC, each of us has limited personal experiences. About 350 clients participated in the 2015 survey. Each of those people had his own unique interactions with OSC staff. On a personal level, I’ve been dealing with OSC employees for over 35 years. Here at FELTG, one of the legal services we provide is representing agencies and individual managers in dealing with OSC. Without exception, although many times I do not agree with them, the representatives of OSC have been exceptionally courteous with me. Perhaps it’s my own internal charm that draws courtesy out of people (ha!) or perhaps I’ve just been lucky. Whatever it is, I cannot say I have ever experienced discourteous conduct on the part of OSC personnel.

Of course, perhaps others have. If we do a study and it turns out that OSC personnel are routinely being discourteous, then the solution to the ratings is to train those personnel in being courteous, and then hold them accountable for practicing what they have learned. There are a number of companies (e.g., Nordstrom) that teach customer courtesy. OSC could contract for training, and then impose discipline as specified in the CSRA for those who do not obey agency rules about courtesy. Alternatively, OSC management could implement Performance Improvement Plans for employees who fail a Courtesy critical element.

What’ that you say? OSC personnel don’t have any critical elements related to courtesy? Maybe that’s the start of the solution right there. [Special notice to OSC management: If you are unfamiliar with these two approaches to employee accountability, come to our MSPB Law Week seminar next scheduled for September 12-16, in Washington DC. Free coffee!]

OK, we do our little study and we find out that, for the most part, OSC personnel are just about as courteous as we would expect government employees to be, maybe even a bit better than some others. If that’s the case, then perhaps there’s something about the courtesy sensitivity of OSC clients. The people who go to OSC for help believe that they have been mistreated, that management officials within their employing agencies have committed prohibited personnel practices against them. In other words, they believe that they are right and others are wrong. Some might call them self-righteous; others might simply call them right. Whatever the case, if there’s a personality characteristic that makes OSC clientele more likely to feel that they’ve been treated in a discourteous manner, shouldn’t we acknowledge that in some way? And once acknowledged, maybe there are things we can do to reduce the feelings of discourtesy in this particularly sensitive group, sort of how we give anger management training to people who cannot control their anger. Sometimes folks need help.

When assessing any survey results, we have to keep in mind that there could be a problem with the data-gathering methodology. However, assuming that there’s no methodology problem in the survey that produced the results on page 44, and assuming that President Carter was right that courtesy in government is important, then it seems obvious to us here at FELTG that somebody should look into the cause for such low ratings. There are things that can be done to improve the situation whether the cause is discourteous OSC employees or courtesy-sensitive OSC clientele. Of course, we don’t get to run anything here at FELTG except ourselves, but SOMEBODY ought to be checking this out. Wiley@FELTG.com

You’re Still Making the Same Stupid Mistakes

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By William Wiley

Twice a year here at FELTG, we present an audio conference that we bill as an update on the law. Starting this fall in our next offering, we’re going to add a new twist. We’re going to highlight not only any tweaks to the existing law, but also call out those agencies that continue to make stupid mistakes, causing them to lose charges and cases that should not have been lost.

That’s right. No more Mister Nice Guy. After 15 years of trying to teach agency representatives how to win cases, protect employee rights, and save us taxpayers a bucket-load of money when you screw up, we’re going to tell it like it is. Yes, you lose cases sometimes because the members at  MSPB get a little screwy and try to create foolish new law (e.g., the comparator employee Terrible Trilogy, Miller reassignment only if it makes the employee happy, prior discipline as progressive discipline only for the same category of misconduct). And sometimes you lose cases because the judge weights your evidence more lightly than you thought warranted. But do you know the Number One reason agencies lose cases? No, you don’t, because you haven’t read all the Board’s decisions.

Fortunately, we have here at FELTG. And the Number One Reason agency removals are set aside on appeal is … (drum roll, please) … practitioner error. That’s right. Some agency employee, attorney or Human Resources specialist, did something wrong. And we are TIRED OF IT. We’ve been out here for 15 years, a dozen times a year or more, telling you agency practitioners how to win cases. And some of you still don’t get it. Federal employment law is our craft, for goodness sakes. If you claim to be one of us, then you must properly and consistently practice our craft. And waaaaaaay to many agencies are relying on practitioners who don’t know this work, to do this work.

Let’s take just one topic: charging. Our FELTG colleague, author, and Instructor Emeritus Renn Fowler highlighted this issue all the way back in the mid-90s. MSPB and the Federal Circuit Court of Appeals are very fussy about the way an agency frames a charge. Something about Constitutional due process and the Magna Carta providing inalienable rights to federal employees. So for at least 20 years, those of us who teach employment law to federal agencies have been pounding away at the critical nature of the drafting of a charge in a proposal letter. By now, federal agencies with even a modicum of knowledge should have picked up on how to do this.

Yet too many haven’t.

We’ll be covering this in more detail in the fall webinar, but here’s a little taste of some recent evidence that some employment law practitioners do not know the basics:

Reid v. Air Force, CH-0752-14-0849-I-1 (2016): The misbehaving supervisor had a way of saying and doing things relative to the breasts and buttocks of other employees that were simply inappropriate in a federal workplace. When the agency finally got around to proposing that she be fired, one of the charges it relied on was “Touching and making a statement about the breast size” of another employee. And all of you certified practitioners who have completed our famous MSPB Law Week just about choked on your morning coffee when you saw that conjunctive “and” in the middle of this charge. Because you know that the law for nearly a quarter of a century requires that an agency prove both sides of a conjunctive change that is joined by an “and.” As the agency proved the touching but not the making a statement, the charge failed.

Bennett v. DVA, CH-0752-15-0367-I-1 (2016): Although the Board conceded that the appellant had a record of troubling behavior, it reversed the agency’s removal and put Mr. Bennett back to work because it simply could not “uphold his removal by affirming a poorly drafted charge.” And the horrific charge? Eerily similar to one we use as a bad example in our FELTG on-site one-day Charges seminar: “Disrespectful, intimidating language toward a supervisor/Conduct unbecoming a Federal employee.” Was it disrespectful? Was it intimidating? Was it both? And how’s all that related to unbecoming conduct? Would the conduct have been “becoming” if appellant was NOT a federal employee? Just think of all the good DVA could have done for our vets with the money it has to spend to pay this guy’s back pay. At least, a nice balloon party.

We’ve got more. So sign up for our Update webinar, if you can take pain and humiliation. If you want Mr. Nice Guy, go talk to an EAP counselor. If you want to learn how to be a better practitioner and not embarrass your agency and the rest of us in the same profession, come to our seminars. Learn this business. Everybody makes mistakes, but there are no excuses for mistakes that could (and should) have been easily avoided. Wiley@FELTG.com

 

 

MSPB’s Non-Precedential Decision Policy is Bad for America

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By William Wiley

Beginning in 1979, MSPB issued two types of decisions: precedential and short forms. The short form says nothing other than a Petition for Review challenge to a judge’s decision has no merit, much like the Supreme Court’s say-nothing orders that “deny certiorari.”

A full “Opinion and Order” precedential decision discusses an important civil service principle, and contributes to the development of federal employment law. The Board’s reviewing authority, the US Court of Appeals for the Federal Circuit, is bound to affirm an MSPB Opinion and Order on appeal unless it is:

  • Arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
  • Obtained without procedures required by law, rule, or regulation having been followed; or
  • Unsupported by substantial evidence.”

5 USC § 7703(c); see Terban v. Energy, 216 F.3d 1021 (Fed. Cir. 2000)

About five years ago, the then relatively-new leadership at MSPB decided to replace the say-nothing short form dismissal with a new type of decision, a non-precedential order (NP). These new orders were defined by the Board as not contributing significantly to the Board’s case law, 5 CFR 12901.117(c). In other words, they were intended to dismiss the less-important issues while simultaneous giving the reader insight into the members’ rationale for doing so.

When the NP change was announced, this newsletter argued strongly against it for several reasons:

  • Writing substantive NP decisions in the 60% of the appeals that formerly were short-formed would double the workload at MSPB without any commensurate increase in the value of the decision.
    • An increased workload would result in increased delays in issuing decisions thereby denying appellants a prompt resolution of their cases and increasing the government’s back pay liability in appeals in which a removal was set aside.
  • NPs allow the Board to create secret anti-agency case law, case law that cannot be challenged by agencies on appeal. You see, only significant decisions can be appealed by the government to federal court. As NPs, by definition, are not significant, the Board can give direction to its judges relative to the thoughts of the members via an NP, and an agency cannot do anything about it (whereas an appellant can).
    • Yes, the Board says in the introduction to an NP decision that a judge is not required to follow its reasoning. However, if you do not think that judges read these things and apply the rationale to later cases, you do not know how a judge thinks. If you were a Board judge, and an NP decision said the answer is X, would you not go with X the next time you saw that issue, knowing that if you said Y or Z the members will reverse and remand the case to you? Everybody likes to go home on time, even MSPB judges.
  • NPs confuse consumers: the parties, the courts, and us practitioners. We do not know what to do with them and they double the research case load, although we’re not sure they are worthwhile as precedent.

Here’s an example that reinforces our argument that MSPB made a mistake when it decided to begin issuing NPs. On July 14, 2014, the Board issued an NP order in the appeal of a putative whistleblower. The appellant had disclosed his belief that a private sector company had committed tax fraud. The judge had found disclosures related to misdeeds by private entities were, per se, not the sort of disclosure protected by the whistleblower protection laws. Two of the three members agreed, holding that the whistleblower laws protect those who disclose government malfeasance, not private entity malfeasance. Aviles v. Treasury, DA-1221-13-0518-W-1 (2014).

MSPB Vice Chairman Wagner disagreed. She argued in dissent that the then-recent amendments to the Whistleblower Protection Act expanded the protection of whistleblowers beyond those that report government malpractice, but also to those who disclose waste/fraud/abuse by private entities in their normal course of duties.

This issue is HUGE. If Congress indeed intended to expand the definition of whistleblower to cover those who report non-government bad deeds in the normal course of their duties, as argued by Vice Chairman Wagner, the universe of whistleblowers increases by several-fold, as there are hundreds of thousands of government employees who have the opportunity to do this sort of thing as a routine part of their work. One would think that if one of the three Presidential appointees at MSPB believes this is what Congress clearly intended “as a matter of plain logic,” the Board’s decision in this matter would be worthy of a precedential decision.

Well, the members did not think this way. They decided to hide this intra-Board disagreement in an NP, thereby relegating the competing rationales of the dissent and the majority opinion to the never-never land of Board law.

In response to the NP order denying his appeal, appellant Aviles took the Vice Chairman’s arguments in his favor to the United States Court of Appeals for the Fifth Circuit. As it turns out, this NP decision became the very first decision to be appealed directly to the Fifth Circuit as provided for in the alternative forum provisions of the 2012 amendments to the Whistleblower Protection Act. The Fifth Circuit did three interesting things with this “insignificant” Board order:

  1. Held that it would not decide whether it was bound to provide the 5 USC § 7703(c) (Terban) deference to an NP decisions (the court is just as confused as the rest of us).
  2. Concluded that the US Federal Circuit Court of Appeals, the court that has been ruling on appeals of Board decisions involving whistleblowers for 25 years, is using the wrong evidentiary standard when assessing jurisdiction (e.g., that the motion-to-dismiss standard should be applied to these appeals, not the summary judgment standard used by the Federal Circuit).
  3. That the logic of Vice Chairman Wagner, as argued by the appellant, was “at odds with common sense and principles of statutory construction.” Aviles v. MSPB, 779 F.3d 457 (5th 2015)

Vice Chairman’s rationale was clearly wrong in this matter. However, she was indeed one of the three individuals empowered by the President, with confirmation by the Senate, to make these decisions. Her dissenting logic and arguments should not be relegated to the world of non-precedential orders, especially so when the case involves significant matters of Board jurisdiction and Federal Circuit precedent. Wiley@FELTG.com

Swearing (at?) the Proposal Letter and Other Matters

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By William Wiley

Questions, we get questions. And we got several follow-up questions from a certified practitioner who recently completed our famous FELTG MSPB Law Week seminar. Always good to hear that class participants are picking up on things. Below are my responses, in bold.

  1. Mr. Wiley stated that he now recommends that proposed discipline is sworn by the PO. Is that true for disciple that is not appealable to the MSPB? Yes. Why do you recommend that proposals be sworn to?

By adding the penalty of perjury statement to a proposal letter, the statement is converted from a simple hearsay documenting the agency file to a document having greater evidentiary value. “I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date). (Signature)”.  28 USC 1746. The Board consistently gives significant weight to uncontroverted penalty of perjury statements, and lesser evidentiary value to evidentiary statements made in an unsworn document.  There is always the possibility that a proposing official will not be able to testify at hearing. Adding the penalty of perjury statement converts those factual statements in the proposal – perhaps things that the PO observed personally – into hard evidence that the agency can use to support its case. Without that statement, it cannot use the proposal as evidence of very much. As there is value added and as there is no reason NOT to include the statement, I think it is prudent to do so.

  1. In the class Mr. Wiley said that the deciding official should complete a DF [Douglas Factor] analysis on a worksheet. However, in the version of his book that’s available on CyberFEDS©, the DF analysis is in the document. Which one is correct?

Both are correct. However, attaching the worksheet itself is a stronger approach, and an approach that I developed after CyberFEDS© published the desk book. I believe I wrote the desk book around 2005.  In 2010, the Board began a more scrupulous review of the Douglas Factors. Therefore, my practice evolved.

  1. Mr. Wiley said that if one of our supervisors is confronted with a record that another supervisor gave a lesser penalty, then he could say: “If I was that supervisor, I would have handled it differently.” HR has said that that recommendation is not supported by the case law, and even if a manager would have handled it differently, we are bound by the previous decision, absent distinguishable facts. Do you agree? Is there any case law or other references that support the recommendation?

Davis v. USPS, 120 MSPR 457 (2013): “The deciding official further testified that he was unfamiliar with the [comparator employee] or the circumstances of his discipline, but that he would have removed the [comparator employee] if he had been the deciding official in that case.”

  1. Mr. Wiley said that MSPB is pulling back from the idea that you have to disciple consistently throughout the agency. HR disagrees, and I can’t find any authority in support of the statement.

I reach that conclusion from reviewing how the Board assessed the factors in a recent case like Chavez v. SBA, 2014 MSPB 37, and the facts in the collection of the four 2010/2011 cases that started us down this dark road of comparator employees: Lewis/Woebcke/Villada/Raco. In Chavez, the Board addresses three points that they ignored in the Terrible Trilogy: 1) penalties effected post-removal are due limited weight (the greater the length of time between the two, the less weight the later penalty warrants), 2) different discipline officials in different chains of command can justify different penalties, and 3) the agency need not compare appellant to employees who engaged in similar misconduct, unless that misconduct was actually charged. The discipline officials in Lewis/Villada/Raco were different from the comparators. However, the Board did not consider that when mitigating the penalties in those cases. Yet in more recent cases such as Chavez , the fact that the employees were in different chains of command was a major factor in the Board not mitigating that penalty.

In other more recent cases, the Board has spoken to non-mitigating factors it did not consider in 2010/2011. For example, the Board now considers a lack of knowledge on the part of the deciding officials relative to other discipline to be a non-mitigation factor. Ly v. Treasury, 2012 MSPB 100 (“Any difference in treatment between the appellant and the comparator was not knowing and intentional on the part of the deciding official.”) Knowledge on the part of the deciding officials (or lack of knowledge) was not a consideration in the earlier Terrible Trilogy comparator-mitigation decisions.

Finally, the Terrible Trilogy decisions were issued by Board members Grundmann/ Wagner/Rose soon after Grundmann and Wagner were appointed and began issuing decisions in 2010. Member Robbins was appointed in 2012 subsequent to the Terrible Trilogy decisions to replace Member Rose and immediately dissented from the comparator theory of the Terrible Trilogy. Boucher v. USPS, 118 MSPR 640 (2012). Ms Wagner is now gone and Ms Grundmann’s appointment has expired although she is holding over until after the Presidential election, by all appearances. Putting all of this together leads me to the conclusion that the Board is moving away from its poorly thought out approach in the Terrible Trilogy.

Hope this helps. Best of luck-  Wiley@FELTG.com

This should be GOOD News, not Bad News

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By William Wiley

As we’ve written in this newsletter previously, if your Uber driver picks you up promptly, takes you where you want to go quickly, and is in general nice to you, you rate her 5 stars because she’s done exactly what you wanted.

With this reality in mind, let’s look at some recent numbers from GAO relative to the 2013 federal employee summary performance ratings:

  • Most all agencies have a five-level (5-star) performance evaluation system: Outstanding, Exceeds, Fully, Minimal, Unacceptable.
  • 61% of GS-1 through GS-15 employees were rated either 4- or 5-stars.
  • The higher the grade level, the higher the rating; e.g., 78% of GS-13 and above employees were rated 4- or 5-stars, whereas only 67% of GS-9 through 12 employees received either of these ratings.

One commenter suggested that these findings are a bad reflection on performance management in the civil service by stating, “The GAO report is likely to add fuel to the debate about whether federal performance management is effective.”

No, no they are not. These are wonderful numbers.  They show that 2/3s to 3/4s of federal employees are doing just about the best we can expect from them.  Isn’t this what you would expect from a group of merit-based selectees who are among the best and the brightest? Isn’t that what a merit selection and promotion workforce is supposed to look like, including that those who rise in the ranks to the higher levels get better ratings (because they are better employees)?

It just blows me away when people look at numbers like these and think that there’s something wrong with our civil service performance management system. We get asked to rate and give feedback on so many things these days. If you owned a company and found out that your employees were all rated at the top of a scale, wouldn’t you be delighted? If you drive for Uber, and you consistently get 3-stars, you don’t drive for them much longer.

If people were assigned to work in the civil service randomly, then their performance ratings should follow a bell curve: most in the middle, and fewer 4s and 5s. However, selection into the civil service is the opposite of random. It’s based on merit: talent, education, and experience. Therefore, it should come as no surprise (at least no surprise to those who paid attention in statistics class) that most feds are rated highly.

Goodness knows that agency management could do a better job of removing poorly-performing employees. The Chairman of MSPB said several years ago that 5-7% of the federal workforce is not performing adequately. However, that is unrelated to the fact that most federal employees are doing a good job. That’s why they get good ratings. The world would be a better place if we would accept that we should expect 4- and 5-star ratings from a merit-based workforce, and focus our performance-management energy on getting rid of the bottom of the barrel.

And while we’re at it, making recommendations and all like we here at FELTG know how the government should be run, here are a couple more suggestions to you policy makers:

  • All government performance rating systems should go to a 5-star format. Get rid of the stupid names for levels. “Isn’t Exceptional a better rating than Outstanding?” If it’s good enough for TripAdvisor and Yelp (and Uber and Zagat and just about everybody else), then it should be good enough for the civil service.
  • Service recipients, either internal to the government (e.g., Feds who call an agency Information Technologist for help) or external (e.g., citizens who go to a social security for assistance), should be the primary source of performance ratings.
  • Employees should be required to wear a lapel pen visible to the entire world with their star-rating for the past year. Post ratings on the web.

Performance management systems should be based on both common sense and science. Understanding that high ratings are to be expected from a merit-based workforce satisfies both of those requirements. Wiley@FELTG.com.

Preponderance of Evidence Revisited

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By William Wiley

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

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

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

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

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

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

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

FELTG Once Again Leaps to Defend MSPB

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By William Wiley

And the truth shall set you free.

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

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

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

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

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

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

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

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

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

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

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

My Weekly Flash of Genius: Phone Duty for Presidential Appointees

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By William Wiley, May 10, 2016

Here at FELTG, we are always in pursuit of a better civil service. And one day last week in our semi-annual FLRA Law Week seminar, I had a flash of genius. OK, genius to me. Let’s see what you guys think.

First, the problematic situation. It takes a long time and lots of attorney resources to resolve what should be routine labor relations disagreements. Typical situation:

  1. HQ issues a new policy.
  2. Management’s labor chief notifies Union of potential change.
  3. Union proposes that the change not be implemented.
  4. Management asserts non-negotiability and refuses to bargain. The agency has a “compelling need” for the new policy.
    • If you are already lost, not knowing why management notified the union or what the devil “non-negotiability” or a “compelling need” is, you best get yourself enrolled in out next FLRA Law Week seminar scheduled for November 14-18 in DC.
  5. Union files a negotiability appeal with FLRA. Management has two bad options:
    • Wait until the negotiability process is completed prior to implementing the new policy, or
    • Implement the new policy now, risking an unfair labor practice finding and a status quo ante remedy if the change is eventually found to be negotiable.
  6. Assuming management takes the high road and participates in the negotiability appeal process, the next step is the pre-petition conference with representatives of FLRA. In that discussion, FLRA staff will attempt to mediate the disagreement as to whether there is a compelling need for the policy.
  7. Failing resolution at the pre-petition step, the matter is referred to the staffs of the three Authority members.
  8. Legal research is done, draft decisions are circulated, and arguments as to the proper outcome occur within the Authority.
  9. Eventually, a decision is issued, when at least two of the members agree (the third member may issue a dissent). If there is a dissent, the two members have to review it and may comment on it in the majority opinion.
  10. If the majority opinion is that there is no compelling need for the new policy, the agency is ordered to bargain the implementation of the policy with the Union.

We could spend some time calculating the approximate resources necessary for the Authority to reach a final conclusion in this matter. However, specificity is not necessary to appreciate a central fact: at least a dozen FLRA attorneys and a fair number of weeks (or months) are going to be required to get a compelling-need decision.

Consider, if you will, this genius-level alternative, an alternative that retains in the Authority the power to resolve compelling-need disagreement while avoiding the resource and time commitment of the above procedure:

  1. FLRA establishes weekly phone-in times. One of the three members is assigned to phone duty during each one of these phone-in opportunities.
    • For example, 1:00-3:00 TU, WE, and TH could be established, with each member having the responsibility to be available for the two-hour periods on one of the three days.
    • By internal policy, the three members delegate to the member taking calls the authority to act on behalf of all three members. The board members at MSPB have had a similar internal delegation policy for over 20 years relative to OSC initial stay requests.
    • It doesn’t seem to me that we would be asking too much of a Presidential appointee who is being paid nearly $200,000 annually to answer the damned phone every now and then.
  1. When a local management team and Union have a question as to whether a new HQ policy is based on a compelling need, they get an appointment with the Authority for a phone-in opportunity. Here’s what would be a typical telephone conversation.

Member: Hey everybody. This is Pat. Who do we have on the call today?

Management: Sir, this is Deputy General Counsel Ann Anderson, on behalf of the US Administrative Agency. We need to implement a new policy for which we believe we have a compelling need.

Union:  Sir, this is Chief Steward Ursula Underwood. That new agency policy is no more based on a compelling need than my bad breath is based on evil thoughts.

Member: OK, first, we do first names in this process. Second, you both know how it goes. Ann, you have seven minutes to pitch me your side of the situation, including statements from any witnesses you want me to hear.

Mgmt:  Got it. Here goes … [Blah, blah, blah for seven minutes].

Member:  More interesting than usual, Ann. I appreciate the extra effort put into your organization and elocution. Ursula, what does the union have to say about this fascinating argument in your seven minutes?

Union:  Well, Pat, I can tell you that on behalf of the union, we think you need a bucket and mop to clean up this pile of poo. [Blah, blah, blah for seven minutes].

Member:  Typical Union drivel, Ursula. I would have thought you had moved beyond the 1950s. Ann, you have two minutes for rebuttal.

Management: [Blah, blah, blah]

Member: Ursula, your turn for two minutes.

Union: [Blah, blah, blah]

Member: Hmmm. You have both made good points. And I appreciate your time. However, as for time, it is my time to tell you my decision. After considering your extensive and entertaining arguments, it is my conclusion – on behalf of the Federal Labor Relations Authority – that, although a close call, the agency’s intended change is NOT based on a consideration for which there is a compelling need. Therefore, the union’s proposal is negotiable and USAA is hereby ordered to engage in collective bargaining on the substance of the proposed new policy. Ursula, if Ann and her team don’t comply with this order to engage in bargaining on this issue, give our Solicitor a call at 202-343-1007 and we’ll get a court order for you. Any questions?

Management:  No.

Union:  Not a one.

Member:  Then, we’re done. Best of luck to you both. If you need us again in the future, you know our number. Have a nice day. FLRA out. [Mic drop]

“Oh, Bill. Have you lost your freaking labor relations marbles? Obviously, this will result in a terrible decision. We need lots of lawyers thinking lots of legal thoughts and writing lots of labor-law words to get a valid decision on negotiability. What about consideration of all those factors related to a ‘compelling need’ determination: core function of the agency, necessary rather than merely helpful, possibly abrogation, excessive interference, and the KANG analysis? We can’t really get a good decision if those factors aren’t weighed and analyzed in excruciating detail, can we?”

Of course, we can. Those highly subjective and impossible-to-define terms are just ways that an individual Authority member can justify his or her gut call on whether a matter should be negotiable. Do you think that there has ever been a member in history who actually understood those arcane concepts, and then used them to assess a particular set of facts to draw a rationale conclusion? Of course not. NOBODY understands what these terms mean. They are just weasel words that can be shaded and twisted to support whatever conclusion a member wants to make. And I mean no disrespect by making this statement. Judges do this, Board members do this, and goodness knows that Supreme Court Justices do this. It is the way the world works, whether we admit it or not. We may say, “Pay no attention to that man behind the curtain,” but we still know he is there.

So let’s cut the crapola. Our adjudicators know the answers before we ever get them our arguments. The law says that the FLRA members are empowered to make labor law decisions. Why waste all that time and resources pretending that they are making better decisions with all the legal theater of our attenuated processes? If a union and management have a disagreement about something, get a member on the phone, let him or her hear the parties out, then issue an immediate decision that allows the government to move on. A good decision today is more valuable than a perfect decision two years from now. And since a year or two of adjudication is no more likely to produce a more perfect decision than one issued next Tuesday, why in the world should we wait?

Wiley@FELTG.com