Recently, we’ve had a couple of public events involving Federal employees that produced a hue and cry for action to be taken. The apparent bad behavior of the employees involved caused some, even in Congress, to say things like “With the affirmative obligation to disclose waste, fraud, abuse, and corruption and Mr. Neely’s refusal to cooperate with congressional committees, you should use every option available and act immediately to remove Mr. Neely from the federal payroll. As you know, these options could include termination, suspension without pay, furlough without pay and unpaid administrative leave.” (Transportation and Infrastructure Chairman John L. Mica (R-FL) Press Release April 24, 2012)
There’s probably no good reason for the Congressman to know all the ins and outs of federal discipline but since the Congress created all of the options (and some say disincentives) managers have to deal with bad actors, he should know what is, at least possible. Some of the actions he mentioned are not.
So What’s Available and What’s Not?
First, let’s look at the immediate aftermath of the deed the person is said to have done. Once information is publicized, we have enough to send them home, right? Come on. Even if it appears in the media, it’s only an unverified allegation at best. Federal employees are entitled to due process not only with regard to removal from Federal service but in every other action perceived to be adverse to them. Now let me really confuse you. The legal term for a suspension over fourteen days, a removal from Federal service or a reduction in grade for disciplinary reasons is an adverse action. A written reprimand or a suspension of fourteen days or less for disciplinary reasons is called a disciplinary action.
Under our statutory due process procedures, prior to taking disciplinary or adverse action the Agency must conduct a reasonably thorough investigation and identify that there was a rule, that the employee knew or should have known the rule and that the preponderance of the evidence proves they did the alleged deed that violated the rule they should have known. In other words, the Agency must have a basis to take whatever action it ultimately believe the misconduct warrants. Read on.
In my career, on a number of occasions, a very senior person wanted to can (let’s call him Harry) Harry today. As the good civil servant I was, I said “of course, let’s fire ‘em, that’s what I get paid to help you do. He’ll be gone before lunch.” The manager, knowing that that wasn’t generally possible invariably calmed down and got ready for a discussion of their real options.
The only way to send Federal employees home immediately is to pay them. This is called administrative leave. Otherwise, under the law, when the Agency takes an action that places an employee in a non-pay status, that action that invokes an employee’s due process rights. Congressman Mica suggested four options. Let’s look at each.
His first suggestion is a termination.
If the folks involved in the action are serving under temporary , term or probationary appointments, the term termination may apply. Career federal employees who involuntary leave Federal service for disciplinary reasons are removed. So what the Congressman meant to say was that the Agency had the option of a removal if, indeed, the people were serving in a career position. Of course, even that needs be qualified somewhat. Congress has passed laws giving certain appeal rights to folks serving in both competitive service and excepted service positions as well as to anyone in any position who is let go and believes it is for a fairly wide array of perceived discriminatory reasons.
The second suggestion was a suspension without pay.
The Congressman probably wasn’t thinking about a suspension in the traditional sense, because if he was, a suspension is generally a final action for the alleged behavior and if the folks were suspended without pay, they couldn’t be removed later on for the same behavior. Got it? What he most likely meant was that the Agency could initiate an indefinite suspension. To indefinitely suspend an employee, an Agency usually has to believe that some criminal activity is involved and that the person may be facing imprisonment. Indefinitely suspending an employee gives appeal rights to the Merit Systems Protection Board on that action alone. The problem becomes the potential for two independent appeals and all of the procedural i dotting and t crossing that must be done for a removal has to be done for an indefinite suspension.
The third suggestion was a furlough without pay.
There is such a thing in the Federal service. Furloughs generally apply when there’s lack of work or lack of funds to pay the employee. In addition, if it’s called a furlough and lasts thirty days or less, the employee is entitled to adverse action appeal rights to the Merit Systems Protection Board. If it lasts more than thirty days, reduction in force procedures apply which are more complex and also may be appealed to MSPB. The Congressman couldn’t have meant a furlough because furloughs can’t be taken for discipline-related reasons under the applicable law.
The fourth suggestion was unpaid administrative leave.
The good news for the Congressman on this one is that the regulations don’t use the term administrative leave. The bad news is that the term is used universally in the Federal sector to described paid leave. Putting an employee in a non-pay status, if you recall, is a suspension which carries with it all of the procedural requirements that accrue.
The Path Through the Maze
Every reader should understand that what is said above doesn’t even begin to address the complexity involved in Federal sector discipline. Congress has passed, OPM has regulated or not in many cases, and MSPB has ruled in such a way that the principal attributes a Federal manager responsible for taking action must have are patience, persistence and courage, each in good supply. I had no intent herein to attack Congressman Mica. He has given good and long service. But, if even he doesn’t understand the complexity of what he’s suggesting publicly, it must be time for a change.
As always, I alone am responsible for the above. I have generalized to be able to write an article that wasn’t a book so please blame me for any errors of either omission or commission you find.