It’s Time to Get HIP(AA) to the Hatch Act

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By Dan Gephart, August 12, 2024

Quick facts:

  • A Federal contractor with no authorization to do so traveled to a conference in Russia to offer the host nation a “peace mission” to Mars.
  • A Federal employee who ran for Senate said he didn’t violate the Hatch Act because he was “unaware” of it.
  • Special Counsel Hampton Dellinger announced two important updates to OSC enforcement of the Hatch Act.

Remember a few years ago when everybody seemed to be an expert on the Health Insurance Portability and Accountability Act? HIPAA (not HIPPA as those self-anointed authorities often wrote) is the Federal law that protects sensitive patient health information from being disclosed by medical providers without the patient’s knowledge or consent. Too many people seemed to be unaware of the extent of the law.

The most telling example was when a congresswoman was asked at a press conference in 2021 whether she received the COVID-19 vaccine. She replied that the reporter’s question was a “violation” of her HIPAA rights. Now more people know: Not only does HIPAA not prevent reporters from asking elected officials about their vaccination status; it also doesn’t prohibit workplaces from asking the same question.

I sometimes think of the Hatch Act as the HIPAA of election seasons. For a law that impacts so many Federal employees, a lot still fail to grasp its aim or restrictions.

Take for example, the contractor who received permission to virtually attend the Global Space Exploration Conference in Russia in 2021. Singh-Derewa v. NASA, DA-1221-23-0239-W-1 (May 21, 2024)(ID). The contractor attended in person and identified himself as a NASA employee. (Note: To reiterate, he was a contractor — not an employee of NASA, although he once was employed by NASA, nearly 20 years earlier.)

It turns out traveling without proper clearance is a serious violation of Department of State travel requirements. Following a review of the incident, the contractor was suspended, and later terminated. He was also rendered ineligible for rehire.

After attempting to work with another contractor in the same space center, he filed a complaint with the Office of Special Counsel, which included a Hatch Act component. If you’re scratching your head trying to figure out where the Hatch Act would come in, you’re not alone. Here are the details from the MSPB administrative judge’s decision.

[T]he appellant alleged NASA Administrator William Nelson violated the Act when he discouraged the appellant’s attendance at the 2021 GLEX Conference at which the appellant had planned to present a “peace mission” to Mars with Russia to prevent a “democrat war” with that country. Id. at 15, 21-24. The appellant further alleged Nelson had “collaborated with the Biden administration to prevent and discourage participation in ‘political activity’ that may prevent conflict and avert a potential nuclear war.”

As the OSC explained, and the AJ concurred, “even if the appellant’s allegations are true, they did not give rise to a Hatch Act violation because the alleged activity was not directed at the electoral success or failure of a political party.” Id. at 4.

Then there is the VA physician who ran for the Senate. OSC filed a Hatch Act complaint against the physician. His reply? “[B]ecause he was unaware that the Hatch Act prohibited his candidacy, he did not knowingly or willfully violate” it. Special Counsel v. Salekin, CB-1216-18-0004-T-1 (MSPB May 24, 2024).

The VA provided Hatch Act information in new employee orientation, maintained a Hatch Act FAQ page on its website, and sent Hatch Act emails to all employees in 2012 and 2014 – the year the physician tried to run for office. The physician did not open the 2012 email, asserting, “if I thought it was important to read, I would read [it].”

Ignorance, it seems, is no defense against a Hatch Act violation. It cost this want-to-be Senator a $1,000 fine and disbarment from Federal service for five years.

As we head into the election homestretch, it’s not the time to overlook the Hatch Act. You may not take it seriously, but OSC will.

In a recent op-ed piece for Politico, Special Counsel Hampton Dellinger put White House officials on notice that it was closing the “escape hatch.”  “[P]rior OSC statements that White House officials cannot face Hatch Act enforcement in the same way other federal civilian employees do are no longer in effect,” Dellinger wrote.

He also noted two important updates to OSC enforcement.

First, we will no longer automatically rule out bringing actions against former government employees. As the MSPB has advised: an “employee’s post-violation resignation does not eliminate the case or controversy between the employee and the Special Counsel concerning whether the employee violated the Hatch Act and, if so, what penalty is warranted.”

Second, the wearing or displaying of items in the workplace related to current political figures should be considered contrary to the Hatch Act regardless of whether it is before or after Election Day. Among the reasons for a blanket prohibition on such items while federal workers are on duty or in their office is the clear connection between political candidates and political parties. OSC has long advised that political party swag (T-shirts, hats, mugs) is banned year-round. It is logical and workable to apply the same rule to individual political figure paraphernalia, particularly items referencing presidential candidates who are, understandably, well-defined in the public’s mind as aligned with specific political parties.

Meanwhile, lawmakers are getting serious about the Hatch Act, too. The list of positions “further restricted” from partisan activity would grow under a new bill to include agency offices of inspectors general. The IGs would join the CIA, NSA, MSPB, OSC itself and more than a dozen other agencies that are held to more stringent standards than most Federal employees. gephart@feltg.com

Related training:

And Now a Word With … MSPB Chair Cathy Harris

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By Dan Gephart, July 23, 2024

Twenty-two percent.

That’s approximately what is left of the nearly 3,800 case inventory that the Merit Systems Protection Board inherited when its quorum was restored in March 2022. MSPB Chair Cathy Harris’s swearing-in ceremony three months later gave the Board full occupancy, and the race to tackle those cases began in full.

Harris knew she had a monumental task before her, but she wasn’t worried about the actual work.

“I litigated before the MPSB and the EEOC for about two decades before I came into the job. And I thought I knew everything about MSPB cases. Oh, this is going to be easy, so simple because I know these cases.”

It wasn’t.

“There were all these cases I had no idea about which I never experienced dealing with as a litigator – restoration cases, for example. This is not something my firm focused on. And then the fact scenarios of these cases are always surprising. Just when you think you’ve seen it all, something else comes up. I’m not just talking about employee misconduct. I’m talking about how management deals with situations. The number of management errors and strange areas of misconduct that people get themselves into are just truly astonishing.”

We caught up with Harris two weeks after Henry Kerner, the former Special Counsel, was sworn in to bring the board back to full strength. [Editor’s note: We interviewed Vice Chairman Raymond Limon last month and an interview with Kerner is forthcoming.]

DG: Based on the cases you’ve reviewed, what’s the mistake made most often when it comes to discipline?

CH: One of the biggest errors I see is management choosing the wrong charge to try to encapsulate the employee’s misconduct. It shouldn’t be that difficult to choose the correct charge. Sometimes, management overreaches beyond what the employee did, or just mischaracterizes what the employee did and chooses a charge that’s just not appropriate.

To avoid these errors, managers should work carefully with [human resources] staff and attorneys to try to make sure the charge fits the misconduct.

The other thing I’d recommend is to try to resolve cases before they get to the Board. I see a lot of situations that could’ve been resolved through better communication, better performance management, better discipline management, better warnings to the employee instead of letting things get to a head.

I’m a big fan of mediation at the Board. I think if agencies were spending a little more time and resources on mediation internally, a lot of these problems would go away, and they’d have better outcomes with their workforce.

DG: In our interview two years ago, you said the Board was trying to identify cases that might be appropriate for settlement. How did those efforts go? And what did you learn from them?

CH: Our efforts, I think, were very instructive. We conducted a six-month pilot program from October 2022 through March 2023, called RAMP – the Rapid Assessment Mediation Program, where mediators worked full time attempting to settle appeals at the PFR level.

They settled quite a few. But when the pilot ended, we determined that our limited resources would be best used in issuing decisions in our inventory.

We continue to have a mediation process through our [Mediation Appeals Program or MAP], a well-established program in which administrative judges and other experienced, trained mediators on staff at the Board mediate cases. But the numbers are not that high in settlement at the PFR level. At the PFR stage, we find parties tend to prefer decisions. We’ll keep working on that. I do feel parties should be interested in settlement, even at the appellate level.

DG: Are there certain types of cases that lend themselves more to settlement?

CH: The cases in which there had been a change of law since the initiation of the appeal to the time the case was in the RAMP program. For example, the change in law from the Federal Circuit on performance, Chapter 43 cases. The agencies had to prove another element in order to prove their case. Because that wasn’t done across the board, I think those cases were more ripe for settlement.

Also, there was an evolution of law on the [Department of Veterans Affairs] 714 cases. And those also, I think, were more ripe for settlement at the appellate stage.

At the PFR stage, the parties are pretty set in their interpretation of the facts. The laws that evolved, changed, or crystallized, have allowed, maybe, the parties to get into settlement.

DG: Speaking of Chapter 43 performance actions, we’ve seen several remands because of the need for the pre-PIP Santos justification. Can you explain exactly what type of evidence and format the Board is looking for in Santos documentation?

CH: I can’t really speak to that because it’s different in each case. We look at each case very specifically. Agencies do things differently. Their performance management systems are different. There’s no one right way. Employees’ performance expectations are factually specific.

What I can say without giving an advisory opinion here is that the evidence and the format of the performance expectations need to be sufficient to meet the legal requirements of establishing whether an employee successfully performed under their performance plan. But that’s going to look different in each case.

DG: Early on, the Board seemed to be prioritizing whistleblower cases. As you continue to work through the case inventory and new cases, is there a new priority?

CH: Whistleblower cases make up about 25 percent of our docket. It’s a big percentage and we of course take our mission very seriously to protect whistleblowers from retaliation. We’re evaluating everything very carefully.

When I came on the Board, I said that I wanted to prioritize whistleblower cases. I wanted to prioritize cases where the person is most likely to get back pay. I wanted to prioritize cases that involve disability retirement, and pretty soon I’m listing almost every kind of case the Board has. Because they’re all important, right?

We do prioritize certain cases, but at this point it’s about dealing with the oldest cases and the newest cases at the same time.

DG: Have you seen any trends in new PFRs that are being filed?

CH: You know, MSPB cases reflect what’s going on in society as whole. We’re still working through the inherited inventory. I’m looking at cases from 2020, 2021. That’s mostly what’s on my docket now. We’ve been seeing cases involving COVID leave issues, COVID vaccine issues, and the like, issues involving telework, that expanded during the pandemic.

Our approach, which I think has been very successful, is we started with the oldest cases. We were also simultaneously doing the newest cases because we didn’t want to have a permanent case update review team updating the cases due to the passage of time, evolutions in law.

I’m doing current cases and older cases. We’re seeing different trends based on what’s going on in the world.

DG: Those topics – the COVID leave cases, the vaccine cases – bring me right back to 2021.

CH: Yes, it’s a little traumatic to look back, you know.

DG: Where are you at with the inherited inventory? 

CH: We have 22 percent left. I think we’ve done an incredible job. And, you know, agencies have backlogs for a lot of different reasons. I think the way we handled it can be helpful to other agencies and to ours in the future. What we did is very consistent with all the advice we’ve seen on how to handle a backlog of cases.

One, don’t hide your head in the sand, try to have a plan. Do prepare and don’t be afraid to put resources on tackling the backlog and shift things around, add resources, repurpose duties so you can make sure you’re addressing the problem.

The other thing we do really well at the Board is we have a good system for drafting opinions. We have an extraordinary team of lawyers in our Office of Appeals Counsel. They draft decisions for our review. They did an incredible job of queueing everything up for the Board Members.

We also have a very good Clerk’s office, who have done a good job figuring out where the cases are and how to get them to us.

The other thing we did very well–now, I wasn’t there so I don’t give myself credit for this, I credit the career employees, who during the lack of quorum, took the opportunity to transition to an electronically-based system from a more paper-based-system. This builds efficiencies and makes things a lot better, a lot quicker. This, I think, is the first Board to be doing everything electronically. When I first came, they were still carting some paper back and forth to the Board offices. I’ve looked at a paper file maybe five times in the past two years. I love paper, but it’s not efficient.

All of those things have been really helpful. I think staying mission-oriented helps, too. We really care about the fact that parties have been waiting for years for the adjudication of their matters. And that’s not fair. We feel terribly for them. It puts a lot of lives in limbo. So, I think we’re really motivated.

I think all of those things together is a really good recipe for eradicating an inherited inventory.

DG: What you’ve done will be a case study for years to come, I think.

CH: I hope our pain helps other people. I hope it’s helpful to somebody. I’m really proud of the work we’ve done. I think we’re working really hard, and it looks to me like we’re going to be able to wipe out that inherited inventory around the end of this calendar year.

Listen, there may be some cases that hold over because they’re hard or long or strange or thorny, but, for the most part, we should be in really good shape.

DG: According to last year’s FEVS, morale has fallen at the MSPB. What is the agency doing to address it? And what do you think is the cause?

CH: The FEVS scores come out earlier for agencies than the rankings come, so we’ve had that information for quite some time. We’ve been able to start to address it.

I think there are a few causes. It’s difficult for an agency to be without political leadership for an extended period of time. That had a significant impact on morale on the agency. I think the pandemic had a significant impact. There are a lot of unique aspects to our agency that have caused it to come to this.

What we’ve done is initiated what we call the Continuous Improvement Team to try to address the issues identified as most ripe for improvement through the FEVS and our own internal surveys. The four areas we’ve identified we need to work on most are:

  • Innovation
  • Management communication
  • Employee input on decision making
  • Work-life balance

This team got under way earlier this year. We have a Professional Association, otherwise known as a union, at our agency. We have members of the Professional Association and managers on the Continuous Improvement Team working together, as well as employees from other areas of the agency outside of the bargaining unit.

We’ve already engaged employees on the topic of innovation, regarding where and how folks feel the agency is not supporting innovation. In order to fix it, we first need to know what people mean.

The FEVS is a great starting point, but it doesn’t give you all the answers.

We need to be willing and able to engage to find out: What do you mean by innovation? How can we do better? What does innovation mean to you? We have to get in deep on these topics and find out ways we can take action.

The Continuous Improvement Team anticipates making recommendations on innovation this summer, which will be followed by more communication, and trying to figure out action items, and then we’ll move onto the next topic.

Listen, we have to try to improve. If we’re not trying, we’re not going to improve. I think we have the most dedicated and intelligent and mission-oriented employees in the entire Federal government. I want them to be happy and I want to understand what will make them happier.

I’m grateful for the FEVS and grateful for the Partnership for Public Service that enables us to look into these issues. We’re looking forward to finding out everything we can do to make things better.

One other thing. This is really important. One of the questions on the FEVS that concerns me most is: “I don’t think my response to the survey is going to make a difference.”

I can assure the employees at our agency that is absolutely false. We are taking these things very seriously. We’re devoting a lot of time and effort to analyzing the FEVS results over five years to try to isolate these areas, to figure out what can be better. We’re putting the time in to have a continuous improvement team.

I really hope people understand we’re taking it very seriously.

One of the areas employees identified is they fear reprisal for voicing concerns. We’ve done a lot of work to try to address that. We’ve done extra training for managers and supervisors this year to address how to handle employee’s perceptions regarding reprisal, how to better communicate.

This is our mission. We need to walk the walk and talk the talk. I want to make sure that’s something everyone knows. That’s something I can do as a leader from the top down to ensure that we don’t tolerate retaliation against any employee.

DG: Henry Kerner was sworn in recently as the third Board member. How important is it for the Board to have all three members?

CH: Two things.

First of all, we’re a bipartisan independent agency. So, having representatives from both parties makes us a better Board. It makes us more credible to the Federal employees we serve and to the public as a whole. You’ll see most of our decisions are unanimous, the vast majority, and I expect that to continue with Mr. Kerner joining us. That’s because the Board has built up a very robust body of law over the past 40 years, and it doesn’t matter what political party you’re a part of: We all support and protect the merit system.

That’s the first thing. It makes us more credible.

The second thing I’m particularly excited about is Henry can help us to get these cases out. The more the merrier, as far as I’m concerned. Henry is a great guy. He’s rolled up his sleeves. He’s already voted, and we’ve already issued some of the cases he’s voted on. We’re happy to have him. He’s a real pleasure.

Gephart@FELTG.com

Related Training

Be Prepared and Avoid a Deposition Conniption

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By Dan Gephart, July 17, 2024

A search on YouTube will bring up dozens of videos of famous people from presidents (Bill Clinton and Donald Trump) to pop stars (Justin Bieber, Pharrell Williams) providing testimony in a deposition.

God forbid you find a video of any of the several depositions of Ye. The rapper/design mogul/former Presidential candidate, previously known as Kanye West, has testified under oath that he’s “from Earth” and the “smartest celebrity you’ve ever met” and called an opposing attorney “f-cking stupid.” During one deposition, Ye put on a head covering with the image of Jesus Christ. Even though it “fully covered his face and muffled his voice,” he refused to take it off.

But depositions aren’t just for cases involving the rich and famous. And those being deposed are rarely as outlandish as Ye. (Notice I said rarely, not never.)

In the world of Federal employment law, depositions are an integral part of the discovery process and a critical step in preparing for a hearing before the Merit Systems Protection Board or Equal Employment Opportunity Commission. As we did our own preparation for the upcoming Hearing Advocacy: Presenting Cases Before the MSPB and EEOC virtual training (1-4:30 pm ET on August 13-14), we decided to answer some recurring questions about the deposition process.

What is the purpose of a deposition?

The National Institute of Justice defines deposition as the “recorded sworn oral testimony of a party or witness before a trial.” Depositions allow parties to “explore the strengths and weaknesses of the opposing party’s case.”

Depositions provide the opportunity for attorneys to:

  • Discover information.
  • Lock witnesses into their story.
  • Gather evidence.
  • Gauge credibility of witnesses.
  • Preserve testimony of witnesses.

Are there situations where a deposition would not be a good idea?

Absolutely. Avoid depositions when you’re worried it could provide the opposing party insight into your case tactics or give them an opportunity to evaluate you. Also, there are times when the report of investigation provides all the information you need.

Are all depositions videotaped?

Under 5 C.F.R. § 1201.75, depositions may be taken by any method on which the parties agree. Depositions can be recorded by sound or video, and those recordings are supplemental to a transcript by a certified court reporter. The party requesting the deposition is responsible for hiring a court reporter and paying the court reporter costs.

How do you best prepare for a deposition?

FELTG instructor Katherine Atkinson suggests the following steps of preparation:

  • Review prior statements.
  • Determine which exhibits to use.
  • Paginate the number of the exhibits in advance.
  • Copy the exhibits in advance.
  • Prepare a list of questions, keyed to exhibits.
  • Prepare a witness binder and your binder.

Any advice for supervisors who are deposed? 

  • Be ready to answer leading or nonleading questions.
  • Ignore the conflict around you, whether it is attorneys arguing or objecting to a question.
  • Stay focused on the questions being asked.
  • Do not act like Ye. Gephart@FELTG.com

Training on this topic:

And Now a Word With … MSPB Vice Chair Raymond Limon

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By Dan Gephart, June 17, 2024

Just over two years ago, we interviewed the newly sworn in Merit Systems Protection Board Vice Chair Raymond Limon. We discussed how Limon’s previous Federal work would help as the recently quorumed Board planned to tackle an inherited inventory of nearly 3,800 cases in the middle of a pandemic, while introducing a new e-Appeals system.

Limon’s Federal experience is vast. It included roles with the State Department and the Office of Personnel Management, as well as a stint as Deputy Assistant Secretary for Human Capital and Diversity and CHCO at the Department of the Interior.

However, the Federal job that best helped Limon move from a career “get-it-done” mindset to a political “lead-it” mindset was a volunteer position he held early on in his Federal career.

“I’ll be honest: It was the Peace Corps when I was in Honduras,” Limon said. “There you’re sitting in a fishbowl. It’s a different culture, a different language. People have perceptions about you that could be true, maybe not true. But all eyes are on you. That kind of vulnerability and confidence and willingness to make yourself vulnerable. I took a lot of those Peace Corps experiences I had to go through at a younger age, now I’m sitting at this table [here at the MSPB for my first transition briefing]. All the career executives are getting ready to brief me. I used to sit in that exact same seat you [the Board staff] used to sit in. I didn’t want to be that person that says: ‘This is what you have to do. You have to do this right away.’”

Limon very graciously took time to talk with FELTG last week over Zoom.

DG: Last time we spoke, you had just been sworn in. Tell us what those early days were like.

RL: A lot of that was listening to (MSPB staff), determining: What are the strategies [to tackle the inherited inventory]? What are the best practices we should focus on? And knowing, at some point, yes, we’re anticipating Cathy’s arrival. [Editor’s note: MSPB Chair Cathy Harris, at that point, had not yet been confirmed.] You want to get stood up, but not get ahead of your skis. You also want to make sure Cathy was set up for success.

As I think back on it, first and foremost it was the wellbeing and safety of our employees. Even though it seems like 20 years ago, it was two short years ago and people were still getting vaccinated and workplace safety practices were in place.

DG: And you had the inherited inventory of cases waiting for you.

RL: The expectation from the White House was: Get busy. Get started on these cases right away. I talked with all of the experts here to get their suggestions on what we should be doing to take on that inherited inventory. We wanted to make sure from a data collection standpoint that we were differentiating between inherited inventory and ongoing inventory.

Our progress has been demonstrated. [Editor’s note: The new Board started with an inherited inventory of 3,793 cases. As of the end of May, they had completed 78 percent.] We also post our progress monthly on the Board’s website. That’s a testament to the team, and all these different stakeholders, to make sure everybody was in the room, that they could hear the famous NASA “Go. No Go.” Make sure everybody was in step before we implemented.

It’s a great story, and I think it offers a lesson for other agencies if they ever find themselves in a similar situation. We dealt with a lack of leadership appointments, but other agencies can have unexpected inventories based on technology issues, budgets. The kind of practice we went through can be a map for another agency.

DG: What can other agencies learn from your approach?

RL: First of all, always listen to your experts. They have not only dealt with these issues for a number of years, they have also anticipated your arrival and come up with some good strategies.

As I alluded to earlier regarding my service in the Peace Corps, I needed to stop, slow my roll and listen so I could better understand the culture, better understand the pain points these people had gone through over the last five years, which was very unique.

I’ve been on that side of the table so many times, when a political team comes in. They sometimes don’t have the patience for you. Half the time in the briefing, they’re not paying attention, they’re on their Blackberries. I didn’t want to be that guy. Going back to my beginning, being a Peace Corps volunteer has probably suited me the best for the job I’m in.

One thing I would not sleep on is your IT infrastructure. You can be coming up with all the ideas but if you don’t have capacity to get that information out to your stakeholders, it’s not going to work.

We were facing a challenging time, rolling in a brand-new e-Appeal system, away from a homegrown series of software and IT systems that helped collect some of our information. At some point the legacy systems aren’t going to be supportable.

Again, don’t get ahead of your skis. If we were going to get out there fast reducing the inherited inventory, we needed the confidence our IT system could keep pace.

DG: Based on the cases you’ve reviewed, what’s the mistake made most often when it comes to performance?

RL: I’ll put the bottom line up front: It starts with supervisors. People typically don’t leave the agency necessarily for more money. They leave their supervisors. When it comes to performance management we have to step back. I really do believe performance is a team event, everything from design of your performance program to the development of the performance standards to how you communicate that with your team, how you work with your unions, to roll out, etc. Going back to IT world. I’m at that age and experience, where I transitioned paper processing for time and attendance and/or performance management systems to a web environment and it is not easy.

It’s very important that the supervisor take his or her role seriously, understanding the performance management system, being involved at the beginning stage of it, the communication side of it, understanding how developing your employees is the right thing to do.

Now that I’m, of course, adjudicating and ruling on these cases where employees felt like they were not being treated fairly in the performance process, or management is defending its actions, it basically comes down to there was a communication breakdown. If the standards weren’t completely clear, did they come down from the strategic goals to department goals to office goals to the employee?

When we develop performance standards and metrics, every employee needs to feel it was written for them, to be able to say: “You understand me. This is what I do. It makes sense, now I’m now going to go out and do it.”

A lot of times supervisors, when they don’t clarify and they’re not involved in process, they kind of treat it like they have to instead of they get to, some kind of communication mishap is going to occur, and it manifests itself into litigation. I do see the worst of the worst of that.

I also know from sitting on the CHCO Council for 16 years, there are success stories. There are good ways to do it. It’s not all doom and gloom. In my world, I’m seeing the manifestation of the lack of communication, supervisors not taking their jobs seriously because of several reasons – one being, they were appointed to be supervisor and shouldn’t have been. They didn’t have the competencies, the ability to be a supervisor.

Are agencies holding the probationary periods for supervisors in check? Some do. Some don’t.

Are supervisors being rewarded for growing their people? When supervisors turn down shadowing opportunities to allow employees to go out and strengthen their skillset, but their managers are hanging on tightly, saying I can’t lose you. Nobody else knows how to write that report. There’s no way I’m going to let you go off to training or that detail.

That’s where we’re missing the forest through the trees. When supervisors are so locked into the tyranny of the present, they forget their role as a supervisor is spending at least 25 percent of their time, according to OPM’s supervisory guide, managing and developing people.

DG: What trends are you seeing in new PFRs that are being filed?

RL: I’ve not necessarily noticed a change in types of cases we’re getting. Maybe this is more of a byproduct of the growth of the Board. Through e-Appeal, we’re finding, in my humble opinion, that moving of data and pleadings is happening more efficiently. Looking at the inherited inventory, there were a lot of issues about timeliness, for instance. Was it completely faxed in on time? Did the person receive notice? There was some of that.

We’ll continue to see a significant number of whistleblowing cases. I think 20-25 percent of our cases involve some level of whistleblowing, either as an affirmative defense or an individual right of action. I think that trend line is going to continue to grow.

DG: The Board recently issued a “Notice of Opportunity,” which it has rarely done. I know you can’t talk about the specifics of the case in question, but can you describe the process that leads to a decision to issue a similar notice?

RL: Under the Board’s regulations, when we are looking at a case of first impression or something that we believe needs clarification, we can solicit stakeholder feedback. Recently, we did this in a matter that involves the whistleblower statutes and asked our stakeholders for their viewpoints on the questions we posed.  Also, even though I’ve been in multiple agencies and worked with many employment attorneys over the years, I can say unequivocally the best attorneys work here at the Board. No knock on anyone else, but these attorneys are the best.

They live and breathe it. They read all of the opinions coming from the different courts. We shouldn’t rely on our own hubris. It’s OK to ask for help. With our regulations, we have the authority to go out and ask for briefs. As in our recent notice, we post a couple issues, see what the public thinks. Bring that back in and, hopefully, we start to draft and finalize that opinion.

Gephart@FELTG.com

For more on the Board’s happenings and cases, check out FELTG’s newly-updated class Advanced MSPB Law: Navigating Complex Issues, July 9-11.

 

When All Yell Breaks Loose: Rude Behavior and Discipline

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By Dan Gephart, June 10, 2024

On my morning coffee runs to Wawa, I drive by a pedestrian crosswalk and navigate a hectic parking lot that resembles a Richard Scarry book. This daily caffeine quest often reminds me there are two kinds of people in this world.

There’s the kind who say thank you when you hold a door open for them. These are the people who give you a nod and slightly pick up their pace when you let them cross in front of your car. Then there’s the other kind, who respond to your act of kindness with, well, nothing. No nod. No eye contact. No words of gratitude.

These rude folks aggravate me, even though I know they shouldn’t. But it’s a brief encounter. And once that coffee is securely in my hands, the lack of courtesy I encountered is long forgotten. Also, it’s a lower level of rudeness – one borne of self-absorption, not aggression.

But aggressive rudeness is out there. Just ask any retail clerk. And it’s in the Federal workplace, too, as recent decisions bear out. Unfortunately, there’s no latte or cappuccino available that’ll put these people out of your mind.

In Hornsby v. FHFA, DC-07520125-0576-I-2 (April 28, 2022) (NP), an employee was removed based upon 18 specifications of conduct unbecoming a Federal manager. This guy must be fun to sit next to on an airplane. In one meeting, he held up an email from another employee, who was also in the meeting, and said he found the email to be “[expletive] offensive.”

In this case, the Board sustained only five of the 18 specifications – but the meeting outburst was one of those sustained.

In Brooks v. Small Business Administration, DOCKET NUMBER SF-0752-23-0197-I-1, (Aug. 8, 2023), the MSPB administrative judge (AJ) sustained three specifications involving a loan specialist’s rude behavior. Those specifications involved emails that “impugn[s] the motives and character” of the loan specialist’s supervisor, and “levie[s] vague threats against her.”

Examples of those emails:

  • “I do not trust anything that you have to say because you’re not a credible person when you take into account what you were ‘willing’ to do against me without any real justification and or rationale. You’re (sic) morality and ethics are very questionable. And this too will come to light as well.”
  • “Obviously, you don’t care about what is right or wrong when you literally ignored the ‘facts’ of what I stated. Simply want to use your authority whether it’s right or wrong obviously doesn’t matter with you. And it continually shows in every way. Your time is indeed coming when you will have to be held ‘accountable’ to what you’ve done and continue to do against me.”
  • “I do not ‘personally’ want to review any 4th qtr, or any other year-end review with you because I do not trust anything that you have to say. You do not have any credibility with me.”

In Ikossi v. Department of Defense, DC-0752-17-0357-I-2 (April 10, 2024) (NP), the Board upheld the removal of a scientist on charges of conduct unbecoming and failure to follow instructions. The conduct unbecoming charge was bolstered by six specifications of rude, uncooperative, and unprofessional behavior.

In one of those instances, a supervisor and IT professional were assisting the scientist with reducing the size of her electronic mailbox and syncing her new computer. The scientist pointed her finger in the IT professional’s face and yelled at her. During a meeting to discuss a reasonable accommodation request for telework, the scientist yelled at an HR representative and then “jumped up and down.”

In another meeting, the scientist’s supervisor asked her to read the emails that were sent to her. According to the supervisor, the scientist replied:  “I am not going to read anything” and “You don’t know what you are doing.” When the supervisor attempted to read a printout of one of the emails, the employee grabbed them from supervisor’s hand and called her “stupid.”

In Salyer v. VA, DC 0752-17-0635-I-1 (May 20, 2024) (NP), the Board upheld an employee’s removal, which was supported by nine charges, including (you guessed it) a charge of conduct unbecoming. The appellant’s behavior is a textbook example of rude.

The employee would allegedly “yell” and “raise her voice” at employees. Most of the diatribes were aimed at subordinate employees, but at other times she raised her voice without directing the ire at anyone specifically. When someone told the appellant she needed to stop yelling, she replied: “I haven’t yelled, maybe I should start yelling so people know what my yelling is like.”

This kind of behavior is misconduct, and failure to address it will sink morale, make it harder to meet mission, and could eventually lead to harassment complaints.

In the Hornsby decision, the Board noted it has “frequently held that rude, discourteous, and unprofessional behavior in the workplace is outside the accepted standards of conduct reasonably expected by agencies and can be the subject of discipline.” As FELTG Instructor Ann Modlin told us last year – words and attitude matter. gephart@feltg.com

[Editor’s note: If you’re looking for more guidance on challenging conduct and performance issues, bring FELTG directly to your agency to deliver our flagship UnCivil Servant class. Email info@feltg.com for more information.]

And Now a Word With … Special Counsel Hampton Dellinger

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As the new head of the U.S. Office of Special Counsel (OSC), Hampton Dellinger is immersed in understanding and appreciating the role of whistleblowers. Read more.

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The Why and How of Starting Misconduct Investigations

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By Dan Gephart, May 13, 2024

There’s a buzz at your agency about potential misconduct taking place. It’s been suggested you perform an administrative investigation. This is somewhat new to you, and you have questions, mostly:

  • What’s the goal of the investigation?
  • How do I get started?

You’ve come to the right place. However, if you are currently enveloped in an investigation and have more advanced questions, you should check out Ann Boehm’s recent Good News column, where she addressed several inquiries she’s received when doing investigations training. (If you don’t see your question, send it to Ask FELTG.)

For now, we’re going to focus on the two aforementioned questions. Let’s start with the goal of investigations: Why should you investigate?

Agency administrative investigations are usually conducted because of potential misconduct or civil rights discrimination. (Sidenote: To be clear, discriminating against or harassing employees is itself misconduct.)

For misconduct investigations, you need to know who did what and when so that management can determine the proper course of action; and if that action is discipline, to ensure that it can withstand third-party review.

This is serious stuff. As Ann wrote in Good News: “A good investigation is the foundation for effective discipline in the Federal government.”

So, there’s your mission. What you’re about to embark on is important. It’s no surprise then, that a key to a successful investigation is preparation and planning. Let’s take a look at what you need to know to get started:

  • Legal rights and obligations that apply to Federal employees who are witnesses.
  • Procedures necessary for management to take a disciplinary action.
  • Categories of actionable conduct.
  • What constitutes evidence, and how to gather it.
  • The concept of employee affirmative defenses.
  • How to properly document, store and safeguard evidence gathered during the course of an investigation.

You’ll need patience. This probably isn’t something you’re going to wrap up in a day or two.

It goes without saying that objectivity is critical. However, our brains are wired to make quick judgments on what we’ve seen. Resist the urge to jump to a conclusion, at the very least until you have every bit of evidence you can collect.

Where do you go next? How do you learn all the stuff you’re supposed to know? Ann will present Misconduct Investigations: Get Them Right from the Start on July 24. Want to dive in even further? FELTG’s Workplace Investigations Week will run Aug. 19-23. Good luck out there. Gephart@FELTG.com

The Clean Record Provision is Not Always So Clean

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By Dan Gephart, April 15, 2024

If you’re thinking of using a clean record provision to settle a potentially expensive and litigious employment law situation, you’re not alone. But while clean record agreements are a popular alternative disciplinary tool, they are not without their own set of problems.

For the uninitiated, a typical clean record provision is a term in a settlement agreement in which the agency agrees to change, remove, or withhold potential negative information about the employee’s performance or conduct, while the employee agrees to drop employment-related claims against the agency.

Sixteen months into his term, President Trump released a flurry of executive orders (EOs) impacting the Federal workplace, including one that effectively banned the use of CRAs. Those actions were overturned when President Biden issued an EO rescinding them.

Meanwhile, OPM, who had developed and implemented regulations to comply with President Trump’s EOs, had to re-develop and implement updated regulations. At the time, OPM guidance said agencies were permitted to implement a clean record agreement with an employee, even though the regulations prohibited such an action. Many FELTG readers told us judges were not keen on that approach. Fortunately, OPM regs now match President Biden’s EO. We again have consistency.

The return of CRAs seems like an obvious win-win. Agencies save the time and money of litigating a case, while avoiding the impact languishing cases tend to have on agency credibility and supervisor morale.

Meanwhile, the agreements give employees the opportunity to apply for future positions without any stains on their Federal personnel records.

Or do they?

In its 2013 report Clean Record Settlement Agreements and the Law, the MSPB stated: “Several of the appellant attorneys we spoke with indicated that the primary reason why appellants seek clean records is to aid them in their efforts to obtain another Federal position.”

And, as you know as a federal employee, there is paperwork that goes along with securing a federal job. (I’m looking at you OF-306!). And you sure as heck better not lie on those reports lest you find yourself even less Federally employable.

Honesty isn’t a one-sided coin when it comes to CRAs. Agencies are required to be truthful, especially when talking to Federal investigators in connection with background investigations. We explained as much in a somewhat-recent Ask FELTG article. This requirement to be truthful also applies to suitability determinations and other inquiries related to vetting for personnel security.

But wait, there’s more. Other reasons a CRA may not be the best option include:

  • An appellant does not need show actual harm, such as a failure to obtain a position or other form of monetary loss, in order to establish that a clean record (nondisclosure) provision has been materially breached. Cardoza v. DOJ, 53 MSPR 264 (1992).
  • A clean record provision implies a confidentiality clause when one is not present. In Torres v. DHS, 110 MSPR 482 (2009), the agency agreed to replace the removal SF-50 with a resignation SF-50. However, several former coworkers told a private company that the employee resigned in lieu of removal.
  • CRA compliance is not easy to police, especially as time wears on.

More than half of the settlements before the MSPB involve CRAs. Here are some of the issues to consider when determining whether to go the CRA route:

  • What items will be removed from a record?
  • What systems of records will be cleaned?
  • What obligations does an agency have to support the record in communications with others?
  • Who is bound by the commitments?
  • Details on references.
  • How things outside the agreement can affect the ability of parties to meet their obligations.

This is not to say that CRA can’t be an effective time and money-saving tool. As is the case with other alternative discipline strategies, there are great advantages. You just have to do your homework before you jump in. The best way to do that is to join FELTG President Deborah J. Hopkins on May 21 at 1pm ET for Clean Records, Last Rites, Last Chances, and Other Discipline Alternatives. Gephart@FELTG.com

Use These Tips to Improve Your Douglas Factor Analysis

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By Dan Gephart, March 11, 2024

With the constant changes in Federal employment law over the last several years, it’s sometimes easy to forget not only how useful the Douglas factors are when determining a reasonable penalty for employee misconduct, but also how long we’ve had these factors.

The Douglas factors turn 43 next month. The same day the decision in Douglas v. VA, 5 MSPB 313 (1981) was published, many Americans were turning (literally and physically) their television sets to CBS to watch brand new episodes of Dukes of Hazzard and Dallas.

Considering a large portion of the Federal workplace couldn’t tell Boss Hogg from Rosco or venture a guess at who shot J.R., let’s just say it’s been a while. To help keep your Douglas skills and knowledge sharp, consider these few tips.

1 – Make sure you’re spending a reasonable amount of time and effort on your Douglas analysis. How much is reasonable? In her upcoming (April 24) class Do You Really Know How to Use the Douglas Factors?, FELTG Instructor Ann Boehm suggests: “Usually, half of the effort that goes into defending a misconduct removal should be devoted to the agency’s Douglas Factor analysis.”

The safest way to handle the Douglas Factor analysis is to complete a Douglas Factor Worksheet, attach that worksheet to the proposal notice, and then in the body of the proposal notice, include a sentence that says this: “In selecting a penalty, I relied on the assessment of the relevant penalty selection factors as described in the attached Douglas Factor Worksheet.”

This has been standard FELTG advice for a long time now. As FELTG President Deborah J. Hopkins once wrote on the topic: “We don’t just do that because we think we’re smart; we do that because the law requires us to give the employee the reasons relied upon for the proposed action, and attaching said worksheet ensures we comply with the law, every single time.”

2 – Use the Merit Systems Protection Board’s example. The MSPB rarely independently evaluates the Douglas penalty assessment factors. Instead, the Board generally sticks to evaluating the agency’s evaluation of the factors. Even if the Board members might not fully agree with the penalty, MSPB must defer to the agency’s decision as long as the agency proves its charge(s) and shows the penalty was “within the bounds” of reasonableness.

But then came Purifoy v. VA, CH-0752-14-0185-M-1 (2022)(NP). You probably noticed the parenthesized “NP” at the end of the case citation. Yes, this is a nonprecedential decision. But it is, also, to use Deb’s word — consequential.

Why the lofty word choice for a non-precedential decision?

Purifoy is, we think, the first time the current Board independently assessed the Douglas factors on its own. Read the case and think about the Board’s reasoning. You will be in much better shape to defend the agency’s penalty selection for years into the future.

3 – Consider both aggravating and mitigating Douglas factors and include them in the proposal notice. Some will tell you that only aggravating factors belong in the proposal notice. After all, while most all adverse actions have some mitigating factors, it’s usually the aggravating factors that control the outcome, and only aggravating factors are required at the proposal stage.

However, former FELTG President and founder Bill Wiley had this to say about that: “Do you REALLY want to bet your case on defending the evaluation of whether a specific factor is aggravating or mitigating? Length of Service can be either aggravating or mitigating, depending on how long the employee has been a civil servant. We have to consider both aggravating and mitigating factors in the final decision. Why would we not put them all in the proposal so that the employee knows what we’re doing and why? Maybe we’ve forgotten something (e.g., military service) that is required to be considered. The employee should have the opportunity to know this stuff so she can respond and defend herself completely.”

Join us April 15-19 for MSPB Law Week, where you can get the most effective guidance and up-to-date information via an engaging week of training focusing on the legal requirements and best practices for penalties and much more. Gephart@FELTG.com

 

 

 

And Now a Word With … Lindsay Laferriere of the Partnership for Public Service

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Comments can be, at the very least, disrespectful, disillusioned, and highly uneducated. In this case, they showed a complete misunderstanding of the agency mission and a mistrust of government, in general. Read more.

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