Certainly Bad Law and Maybe Conflicts of Interest at MSPB

By on February 2, 2011 in Current Events with 18 Comments

In a case one hopes the Office of Personnel Management (OPM) has the fortitude to appeal in the Federal Circuit, the Merit Systems Protection Board’s finding that if a person has one or more years of
continuous service on a non-temporary appointment and is subsequently removed
due to pre-employment suitability (i.e. material falsification at OPM’s
direction), they are entitled to procedural rights under 5 USC Chapter 75,
Subchapter II — including review of any debarment and the agency must meet the
“efficiency of the service” standard.

In the past, in order to facilitate and speed up the hiring process,
many if not all, people were brought on board an Agency subject to their
completion of an SF-86. If, in a subsequent background investigation,
it is found that the employee lied on the form, failed to mention disqualifying
information or was generally unsuitable (a term of art) for Federal employment,
OPM or the Agency could can them for that reason without the same burden of
proof or procedures required to remove a Federal employee for misconduct or
performance after the individual had completed the relevant probationary or
trial period for the position.

No harm, no foul. After all if
you got the job through chicanery, why should you have the same protections as
a career Fed? 

In fact, if you have
defrauded the government in getting a job, you may be liable to an action by
the government to recover any and all monies paid you for the period covered by
your fraudulent act. 

Well, not according
to the current MSPB who reversed thirty years of case law to arrive at this
decision. OPM, if you don’t appeal,
shame on you.

Lawyer Shenanigans

The two Board members appointed by the administration are both former
union advocates. So let’s see if I’ve
got this right. 

This case creates a litigation opportunity (and potential attorney fees) that had not previously
existed for both union lawyers and those in private practice representing
Federal employees. In other recent
decisions, this Board has repeatedly reversed its administrative judges and
expanded the bases upon which an appeal may be made (and fees charged). I was once told by an Agency lawyer with whom
I was arguing an issue that legal ethics only permitted a lawyer to be
supervised by another lawyer except in rare circumstances. Does anyone else see a problem here? Oh, I forgot.  Bar associations are only open to
lawyers and Bar ethics committees are only composed of them. Also, half the people who will benefit financially from the government’s errors (as cited by the Board) are employee
lawyers. Ain’t America wonnerful?

The case discussed above is Hyginus U. Aguzie and Holley C. Barnes v. Office of Personnel Management, 2011 MSPB 10 (January 26, 2011). If I
cited it wrong, what do you expect, after all I’m not a lawyer.

In Shakespeare’s Henry VI (Part 2, ACT IV,
Scene 2) after hearing a suggestion about the fate of lawyers, Cade replies:

“Nay, that I mean to do. Is not
this a lamentable thing, that of the skin of an innocent lamb should be made
parchment? that parchment, being scribbled o’er, should undo a man? Some say
the bee stings: but I say, ’tis the bee’s wax; for I did but seal once to a
thing, and I was never mine own man since.”

Any opinion found above is mine and mine
alone.

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

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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.

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