Ten Critical Mistakes Made by Federal Employees in Trouble

By on December 13, 2007 in Current Events with 0 Comments

In an earlier article, (See Avoid Getting Fired: Practical Advice for the Likely-to-be-Tanked Federal Employee), we took a look at alternatives to getting canned. In this article, we’ll discuss employees with problems and the mistakes they sometimes make that aggravate their troubles. As a management representative and employee relations advisor, I frequently saw employees who had made one mistake compound their problems with poor judgments about responding to an investigation, dealing with the supervisor and other bad reactions to legitimate management conduct.

Before I get deluged with the "woe is me" commenter faction, I have seen supervisors that took some pleasure in an employee’s problems. Sadly, more often than not, the employee had been a long term PITA with whom few empathized. Most of the supervisors I advised were apprehensive about what the short term future held while they dealt with the person. Most also felt boxed in by the problem with nowhere to go but discipline or adverse action and weren’t excited about the prospect.

Critical Mistake #1 – Immediate Aggressive or Passive Aggressive Response

Smart Move #1 – Carefully listen to what’s being alleged. If you did the deed, start developing a strategy to minimize the effect on your job and future. If it’s a serious matter and you did it, get out now. Resign before charges are filed. Remember that a standard form 50 (Personnel Action) will annotate that you resigned after removal was proposed. There’s an old wag lawyer’s remark that "when the facts are on your side, argue the facts. When the law’s on your side, argue the law. When nothing’s on your side, just argue." If the facts are true and you are squarely behind the 8 ball, ask the question, "what can I do to make this right?" If you really, truly, honestly, objectively didn’t do the deed and want to keep your job, work on an alibi including witnesses who saw you somewhere else than doing the nasty deed, etc.

Critical Mistake #2 – Blame the Boss

Smart Move #2 – Treat all involved with respect and politely. Diverting attention from the alleged misconduct will not help your case. Eventually the lawyers from your Agency’s Counsel will weigh in on the matter. If your first response or an early response is to blame the boss, they will frequently smell blood in the water and look for a win at hearing based on your bad choice of defense. Facts convince them. No facts equals no case. Time to consider alternatives.

Critical Mistake #3 – Immediately Claim Discrimination on the Basis of Everything Imaginable, Whistleblower Retaliation, Anti-Union Animus, Post Traumatic Stress Disorder (Work-Related Stress), USERRA, Male Pattern Baldness or Fibromyalgia.

Smart Move #3 – Work on favorable evidence. Immediate claims such as those above will raise eyebrows about why you are not rebutting evidence or providing exculpatory facts (Those that get you off the hook.) There is an entire practice and process in dealing with what’s called an "affirmative defense". An affirmative defense usually takes the form of "I might have done the evil deed but even so you’re discriminating against me." It may work but if you think government lawyers are dumb just because they aren’t in divorce or celebrity law, get over it. Agency lawyers got their private practice counterparts beat cold with shorter work weeks, flexitime, work at home and other bennies. The money ain’t all there is despite what you see on Boston Legal.

Critical Mistake #4 – Don’t Cooperate with the Inquiry or Investigation

Smart Move #4 – Ask for time to answer questions and ask if you can answer in writing. The U.S. Supreme Court (LaChance v. Erickson, 522 U.S. 262 (1998)) said it was OK for an Agency to charge an employee for not cooperating with an investigation. So either cooperate or find yourself with a, perhaps, more serious charge. Unless you commited a crime or are accused of doing so, don’t bother to plead the 5th. You only get to remain silent in a custodial investigation. If you start claiming the 5th, a bountiful bevy of barristers will descend upon the matter and give you a long list of warnings with people’s names on them such as Weingarten, Garrity, Miranda, etc. In the end, it’s answer the questions or face the music so why not start out doing so.

Critical Mistake #5 – Provide Inaccurate Information in Response to Questions

Smart Move #5 – If you know the answer give it. If you don’t say so. Inventing answers or fudging facts may be cause for additional disciplinary charges.

Critical Mistake #6 – Engage a Representative with Interests Other Than Yours

Smart Move # 6 – Get a representative whose sole interest in your case is your best interests. I have personally and frequently seen union and other people with personal axes to grind selected by an employee to represent them. My advice is that you be wary of those that promise early in the matter that you will get off unscathed because management is composed of fools. Management may indeed employ a fool or two but discipline is so sufficiently rare and potentially troublesome that someone will usually see that it gets done right at some point. If your representative belittles Agency specialists and attorneys, you may want to rethink your choice.

Critical Mistake #7 – Cash in Your CSRS Retirement Contribution or TSP to Pay Your Representative

Smart Move #7 – Ask your representative, if an attorney, whether they’ll accept a contingency fee. This means that they get paid a modest retainer and will be looking for fees from the Agency when you prevail in the case. Whatever you do, do not cash in retirement funds to pay a representative. Think about it. You have skills. Even if you must eat some crow in a matter, another job may be available. No retirement or the prospect of paying back the money is a dead end road.

Critical Mistake #8 – Refuse to Engage in Mediation or Settlement

Smart Move #8 – Work the Deal. The Agency wouldn’t be negotiating if there was no "wiggle room". The brass ring is a "clean" SF-50 and an expunging of reference to discipline in your Official Personnel Folder. Don’t expect this if you engaged in particularly heinous misconduct such as theft, drugs or illegal stuff. If you are about to get canned for attendance related misconduct as are most other Feds who get fired, make the deal and let your attorney bargain for some fees. It’ll be cheap at twice the price.

Critical Mistake #9 – Take the Matter to Hearing When You Know You Did the Deed

Smart Move #9 – Don’t go to a hearing if you did the deed. I’ve represented Agencies at a number of hearings and been to more. Despite the whining of losers on both sides, in almost every case (at least before MSPB) the truth comes out. It is virtual certainty that the facts will emerge and a fact based decision will result. If you look at the number of cases Agencies lose as a percentage of actions taken, it’s probably less than 2% that are lost.

Critical Mistake #10 – Deciding to Crusade for Truth and Justice

Smart Move #10 – Cut your losses. Every once in a while, a true crusader wins in court. Most of these people have been adopted by an interest group that is paying the bills. My experience is that many who claim injustice merely disagree with the management style of the organization and would substitute their own if given the chance. It is really difficult to be objective about your own mistakes and foibles but betting the farm on exoneration is a serious business.

I know the above may sound like a argument for rolling over to some. I hope the ideas will be given at least some consideration by those who anticipate hearing the woosh of the axe in the near term. It is possible to extricate yourself from trouble with dignity and prospects intact with the application of some common sense and realism.

The opinions contained above are, as always, mine and mine alone. Comments are welcome, even those who disagree.

© 2016 Bob Gilson. All rights reserved. This article may not be reproduced without express written consent from Bob Gilson.


About the Author

Bob Gilson is a consultant with a specialty in working with and training Federal agencies to resolve employee problems at all levels. A retired agency labor and employee relations director, Bob has authored or co-authored a number of books dealing with Federal issues and also conducts training seminars.