Monty Python frequently devoted a part of the show to John Cleese portraying a British civil servant working for the “Ministry of Silly Walks”. Much of the past year’s Federal official doings in LR & ER might have fit right in to a series of sketches titled “The Litigation of Silly Assertions”. I’ll save the best until last but regular readers won’t be surprised if it involves our very own FLRA otherwise known as the Ministry of Silly Talks, which gets the award for the silliest assertion of the year.
Fed Family Values
Our first case involves a mother and son team fired from Federal service because false data was entered about the son in the Agency’s application system. It turns out mom was in HR (a staffing and class specialist), knew how to use the system and entered the data. Son’s apparent claim before the Federal Circuit was that while he knew the info was incorrect, he didn’t enter it and therefore shouldn’t have been fired. The claim was that the Agency’s charge was incorrect. He may have been right. How about a charge of too dumb to work?
My Recollection is a Little Vague
In October, FedSmith reported a case about a guy whose claim on his OF 306 was that he forgot he was fired by another Agency. He got canned in September of 1999 and filled out the objectionable paperwork in November of 2001. My claim would have been that I had a senior moment. He apparently was insufficiently gray or bald to support such a claim.
Maybe It Did Come Out of a Cracker Box
Also in October is the tribute to the federal employee who got suspended for disrespectful conduct around a charge involving the statement “You know, I didn’t get my law degree out of a cracker jack box. You’re going to wish you hadn’t started this.” The appellant tried to beat the rap by claiming protection as a whistleblower. Would silly assertions never stop. My favorite line in the Federal Circuits decision is the last one which states “(The appellant) makes a variety of other arguments, each of which we have considered carefully and find to be without merit. We therefore affirm.”
Maybe He Had A Wrong Number
For any of you with one or more teenagers around the house, the case of the financial clerk who was canned because couldn’t get off the phone will have a definite resonance. He admitted making the calls (in one case, 623 of them in a 47 hour period), but claims his past performance and length of service should have weighed against his removal. The Federal Circuit upheld the removal. I thought that the court was implying that even if the guy had 50 years of service, 25 were on the phone and didn’t count.
Lock Me Up
The very best (silliest) union proposal of the year arose in a case involving computer types who wanted to be locked into their work area and to preclude supervisors from entering. From the decision: “The Union claims that the IT specialists are currently working in a “hostile work environment” and, if the door to the IT office is opened, they will be subjected to “constant interruptions, snide remarks from other [agency] personnel [and] tattling to management about what is [or] is not being done[.]” The FLRA (no surprise) didn’t find the proposal silly at all and devoted a lot of space in the decision on why it was nonnegotiable.
Gives Me Confidence
In May, a terrifically silly assertion was made by the president of the National Border Patrol Council. The president claimed that the 100 delegates to the union’s convention had their fingers on the pulse of the workforce when making a “no confidence” vote on the chief of the Border Patrol. Now let’s see if I’ve got this right. A union convention lacks confidence in the head of an agency in a Republican administration but to be credible must represent the workforce in their voting. Huh?
Exotic Places at State Department, No Surprise
A State Department employee is awaiting prosecution for accepting airline tickets from Toronto to New York and Las Vegas for himself and two exotic dancers, along with hotel accommodations, meals, and expenses. Ostensibly, the trips were to grease some visa applications the official could help with. The assertion I liked was in his email to the guy who paid for the trip in which he is quoted as saying that spending time with the exotic dancers “really helped me relax”. I wonder whether they were showing Ocean’s 11, 12 or 13 on the flights.
I Lied, I Admit It But They Didn’t Prove It
In April, FedSmith reported the case of a former Senior Auditor from the Department of Homeland Security who tried to get the Federal Circuit to believe that the Agency should have charged him with falsification which would have required, according to him, proof of intent to mislead. The facts were clear that he did the deed involved but the court thought the assertion silly and affirmed his removal.
Teddy is Spinning in His Grave
In November, I read with great enjoyment Frank Ferris’ shock that the decisions of a Bush appointed FSIP might not go the union’s way all the time. Ferris, NTEU’s No. 2 behind Colleen Kelly penned a diatribeinvoking Teddy Roosevelt of all people, a Republican himself, for the premise that government officials should not be politically partisan. Teddy was the appointed Chairman, at 30, of the brand spanking new U.S. Civil Service Commission which the Democrats dismantled in 1978 under the same law that gave Federal unions a statutory basis for recognition.
Dr. Ferris’ wonderfully silly assertion that the Republicans partisan appointments are more partisan than those proposed by a Democratic administration are belied by his statement that: “Composed of seven White House appointees who do not have to be confirmed by the Senate or anyone else, the Panel resolves bargaining disputes by imposing binding contract terms on the parties. Members do not need any measureable knowledge of labor-management relations or any other professional credentials.” This was high on the most silly list but takes a close second behind our next and last one.
The Law We Administer Precludes It But That’s OK, We Administer that Law
Early this year, for a reason I forget, the issue of FLRA’s union came up in a conversation with colleagues. I decided to do a little research and an article resulted. Federal labor law specifically excludes the FLRA from coverage under the law along with FBI, CIA, Secret Service, NSA and others. So I wondered how FLRA recognized a union. I was rewarded with absolutely no response to a FOIA request for a couple of months and decided to write FLRA’s Inspector General to see what was up. The IG, a delightful lady, called me and asked what I needed. I told her I wanted to see the basis for the recognition.
I was sent a Justice Department memorandum from literally the last months of the Carter administration in the late 1980’s. The memo is an absolute standard of silly assertion and while I recognize it wasn’t written in 2007, it’s been locked away in the secret recesses of the FLRA until this year. In essence the memo states that while the law forbids recognition under its provisions, FLRA is free to recognize the union under its general authority.
While reading the memo, I was caught by the similarities of today’s front page news with the Justice Department’s belief under a different administration and Attorney General. Based on this memo, President Bush needn’t worry about the prisoners in Gitmo, national security wiretapping or any other concern. The Dems under Jimmy Carter created the precedent that if Justice says so, it must be so. Silly? You be the judge.
Thanks to Susan Smith whose untiring efforts to highlight the silly in her reporting of cases laid the groundwork for this article.
However, as always, any opinions expressed herein are mine and mine alone. Happy New Year as we look forward to more silliness to come.
