A Must Read: MSPB's Clean Record Settlement Report

By on December 10, 2013 in Current Events with 28 Comments

While the Merit Systems Protection Board (MSPB or Board) would certainly never be so politically incorrect as to offer the adage that “a blind man has no business in a card game”, even a cursory reading of its new report, Clean Record Settlement Agreements and the Law, belies the truth of that quote.  The report identifies, often by implication, the pitfalls involved in making deals with employees in which the Agency agrees to expunge negative information from the employee’s record in return for a resignation.  As such, it provides critical information for those with the sense to read it.

For those not caught up in the Byzantine world of adverse actions(removals) that will likely be appealed to the Board, we’re talking about entering into an agreement in which an employee, generally about to be fired, resigns in exchange for a clean record.  The Agency, for its part, gets rid of a problem without running the risk of or facing the cost of litigation.  For the Agency, settlement can be a good deal if the case has complexities of law or evidence heightening the risk.  I believe it’s always a good deal for the employee in that Agencies prevail in or successfully settle at least 96% of Board eligible cases.  (See the FedSmith article How Are Agencies Doing Before the MSPB from earlier this fall.)  Employee attorneys, union representatives and those employees who believe themselves to have been unjustly removed by the ongoing oppression of the toiling masses by cruel government overlords may disagree but they probably won’t read this article anyway.

So What’s in the Report Worth Reading?

Frankly, all of it is worth a read.  If you prepare adverse actions, case files or particularly settlement agreements, get out your sticky note place holders, yellow pens and three hole punches.  If you’re a proposing or deciding official, you’ll need a pen to write questions in the margin to ask your advisors and advocates.  If the HR and counsel staffs are on speaking terms, a meeting to discuss the reports and how it can improve your settlement agreement offers would be a very wise idea.  I conduct an advanced ER class and this will certainly be included next session.

There’s an introduction and conclusion plus four major areas:

  • “CLEANING” THE RECORD
  • DISCLOSING THE RECORD
  • WAIVING CONFIDENTIALITY
  • EXTERNAL RESTRICTIONS ON THE EFFECT OF A CRA

“Cleaning” the record addresses the obligation an Agency incurs to fix both the Official Personnel Folder and other Agency record systems.  What wasn’t specifically addressed is the obligation with regard to security-related systems.  What’s useful is the attention paid here and throughout the report to how the use of specific agreement language broadens or narrows an Agency’s obligations.

Disclosing the record covers the ins and outs of exceptions to non-disclosure particularly when a legal obligation is involved.

Waiving confidentiality addresses what might be the results of providing information to an outsider and on the Agency’s ability to limit employees from making disclosures.  While the Board appears to hold an Agency broadly liable for employee disclosures, missing is a discussion of a good faith belief on an employee’s part that he/she must provide a truthful answer to a legitimate inquiry and what authority an Agency has to limit a coworker’s comments to virtually anyone based solely on some promise its representatives made.

External restrictions on the effect of a CRA talks about obligations to disclose based on public policy and actions of third parties such as criminal investigators or the Agency IG.

The Board included in the report an Appendix (B) in which it listed the questions asked agency representatives and provided their responses.  I found this particularly interesting.  I think you will too.  For example:

  • 95% of the 621 Agency reps said they had been involved in settlement agreements.
  • About 89% said that some percent of agreements had clean record provisions of which about 30% of respondents said over 505 of agreements had such provisions.
  • 73.5% said they agreed somewhat or strongly that clean record agreements are often the only way to get an appellant/employee to agree to settle.
  • 94.4% said they agreed somewhat or strongly that they consider the seriousness of the appellant’s/employee’s conduct when deciding whether to recommend/agree that the agency will clean a record that documents misconduct.
  • While about 60% though such agreement in the Agency interest, 94% thought they were in the employees’ interest.

There are a lot more interesting opinions recorded in the appendix.

The report indicates a limited role for OPM’s involvement in such arrangements while cautioning Agencies that OPM can trump retirement deals.  I wonder if this is a result of a less active OPM than in the past.  After all, the OPFs belong to OPM and are maintained under that Agency’s authority.  The report leaves unanswered the scope of OPM’s control.  Also somewhat missing, I think we all know why, is the issue of national security information and information affecting position sensitivity.  In fairness, this is not a speculative or predictive report but one that looks at the record thus far. The report has lots of very good information for the smart advocate or practitioner.  The not-so-smart will probably pay little attention giving the Board the freedom to correct their mistakes.

As always, my opinions are my sole responsibility.

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

Tags:

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.

Post a Reply

Your email address will not be published. Required fields are marked *

28 Replies

Comments RSS

  1. CancerFromIRS says:

    IF the agency will not provide a correct SF-50/52 reflecting the employee’s career tenure, the agency is violating the “clean resignation” promise since every hiring manager knows that removal of career tenure from a competitive service career tenured employee’s SF-50 means there was a termination, not a resignation – and it falsely indicates that due process was provided to the victim since career tenure is a property right that supposedly can’t be taken away without providing due process (yet IRS and MSPB violates this by misrepresenting the employee’s status to the MSPB judge who blindly accepts these IRS misrepresentations even with clear proof to the contrary, and denies the victim a hearing). Essentially a victim – charged with no offense whatsoever and who has only 18 1/2 years of nothing but excellent evaluations – is now falsely branded a criminal and denied all future federal jobs, just prior to reaching retirement age.

  2. Sincerely_09 says:

    While “Clean Record” settlements may seem like the best & most efficient deal at the time, they can be very short sighted & come back to bite you – HARD.

    Federal employee receives such a settlement after being terminated for criminal activity & gross misconduct & is debarred by OPM for 1 year. They then apply for a similar position & the suitability adjudicator is not permitted to consider the previous conduct so the person must be found suitable & is hired. Within a few months the individual is suspected of same criminal/misconduct activity but they learned from previous mistakes & are a little better at covering their tracks; thus, it takes much longer to investigate, document & prove said activity. To boot, the person files retaliation grievances, EEO complaints, violation of regulation/law accusations & diverts the focus/suspicion/admonishments upon coworkers, supervisors & managers… it takes over a year to get Legal/CO/Execs to even consider the employee might not be the victim they claim to be (all while still performing illegal actions). Eventually the truth is out & another termination is processed… I wonder how much time, money, reputation status was lost because of the “Clean Record” settlement on a person that has no values or remorse… I also wonder if another “Clean Record” settlement will be made this time around for “the benefit of the Agency/Employee”. I wonder…

  3. CancerFromIRS says:

    Even the unfair (forced through misrepresentation) settlement, all dictated by IRS, will be breached, and if you call MSPB to find out why, they will tell you “oh, we don’t enforce settlements”!!!!!! So with no NTEU, you must pay hundreds of thousands if you want them to provide the “clean 50” they promised. This is again, an employee with no charges against them, and only excellent evaluations for their entire nearly 20 year career. This is how MSPB operates, and this is why they need to be eliminated!!!!!!!!!!Taxpayers should not be supporting this!!!!!

  4. Truth says:

    The “clean 50” is a lie. When a career tenured employee is denied their constitutional right to due process due tp IRS violating proper procedures (failing to provide even the minimum 30 day warning to a career tenured employee with nothing but excellent evaluations for their entire career of close to 20 years), IRS wins by their own illegal actions since NTEU drops the victim once terminated without those procedures. With their salary illegally taken, they’ve now lost all means of defense since it will cost hundreds of thousands to fight this (with close to 0% chance of success at MSPB). So even when the judge states he suspects he knows the “real reason for the termination” since there was no minimum 30 day warning or chance to respond and the employee has nothing but excellent evaluations for their entire career of close to 20 years, the MSPB judge tells the victim that he or she cannot have their case heard (even claims he’d “love to hear this case” and that the unfair settlement is the victim’s only option.

    When IRS misrepresents an employee’s rights to the MSPB, MSPB blindly accepts this, even where the SF-50’s for the last 15 years prove the earning of career tenure (which by definition means the employee is non-probationary), and where the career tenure is undisputed by the agency. Also, they don’t provide the clean SF-50 as promised since it will no longer reflect your career tenure (they will remove the career tenure, which implicates the employee in an unknown crime they didn’t commit, since it implies that due process was provided (career tenure can’t be taken without due process).

    Since NTEU drops the union member once the agency breaks all rules and terminates you without the minimum 30 day warning, it will now be impossible to challenge this crimes since they know it will cost you hundreds of thousands (with your job and salary illegally taken, without even the 30 day warning and chance to respond). You have to go to MSPB to realize that it is a sham – “Dickensian justice” – another huge waste of taxpayer dollars. MSPB needs to be eliminated!!!!Taxpayers shouldn’t be supporting this!!!

    • Manage This! says:

      The NTEU does not drop a union member from representation. You have bylaws by which a terminated employee can file and be represented by the Union but there are rules and if you have violated the law, then they are under no obligation to support or defend you against a proper removal action.

      For you to use “Dickensian Justice” suggests that you have some experience with “Due Process” and as such, you feel a need to rant that someone has violated yours.

      No sorry here!

      For this to have happened, you had to have done something more or less so horrible that immediate removal was the only choice available. The MSPB does not make statements like what you have suggested here that a Judge has commented. If anything, if he did make such a comment – you might not have been so lucky had he had a shot at hearing it. I shudder to think what that violation was – having my suspicions – I would say that you are probably very lucky not to be in prison, though that might also be on the table just not yet implemented by the civil authorities.

      • Truth says:

        You don’t know what you are talking about. There were no violations whatsoever, except on the part of the manager who had a long record of mixing up his employees (clearly should have been investigated for what appeared to be “drug-addicted behavior.” You are wrong – once terminated without the minimum 30 day warning and chance to respond, you lose your right to a union grievance. You have no ideas since you haven’t been there. The lack of justice is “Dickensian” especially the lack of due process. You have no clue whatsoever. MSPB is simply there to cause more pain on a victim whose salary (and retirement) has already been taken without due process). If I was in your shoes, I’d assume I had done something horrible, too. Even the union rep was dumbfounded at what they did, but as we’ve seen in the news, there is no oversight whatsoever over IRS. And we found out soon after settlement that the hiring manager’s daughter needed my job, so that explained a lot. You are so clueless!!!!!!!!!!!!!!!!!!!!

        • TheRealOldFed says:

          You were terminated during probation. You basically have no rights to appeal that. Many Agencies can and do require a new probation period when filling positions. It is not illegal. As long as you didn’t take out your retirement contributions, you can apply for a deferred retirement when you reach age 62. Get a new job and get over it. There are plenty of folks terminated during probation who have successfully applied and gotten new Fed jobs and continued on in their career.

          • Truth says:

            That’s a lie, as has been confirmed by expert lawyers. You don’t know what you are talking about. Career tenure means, by definition, “non probationary” and career tenure continues for life. You don’t have a clue as what your are talking about. Check out the George Claiborne case which states this fact clearly.

          • truth says:

            and it was not a new position (same position) so you have no idea what you are talking about

          • jlm says:

            wrong again, I was career tenured in the competitive service in same job (so by definition, non-probationary). Keep up the misinformation to confuse the public (you remind me of the Taliban in “I am Mulallah”) – misinformation to enable them in their crimes!

      • TheRealOldFed says:

        From what I have read on the many other sites this person posts on, they went to a new position in the IRS (maybe from another Agency, not sure) and were required to serve a new probation. They were then terminated during probation, which requires no reason to be given at all, as we know. IRS and other Agencies can and do require a new probation period when filling jobs. One of my former co-workers went there as a GS-14 and was required to serve a new 1 year probation period. As far as I know, that’s not illegal and many agencies do it. The person who keeps posting crying about it just needs to get over it. As long as they didn’t take their money out of retirement, they can still apply for deferred retirement at age 62.

        • jlm says:

          wrong again, it was the exact same competitive service job in which the employee earned tenure 1 career tenured status. Keep grasping, you might someday grasp the facts!

      • jlm says:

        Wrong, NTEU drops the member as soon as IRS wrongfully terminates without following proper procedure (fails to provide the minimum 30 day warning and chance to respond). Again, the member had no offenses even alleged, and nothing but excellent performance appraisals for their entire career. Now that Kelley is retiring, hopefully things will change since most union members I’m sure would be shocked to know this (these are tenure 1 competitive service employees who are career tenured in their jobs). So you should be shudder, but not for the reasons you state as you are completely ignorant of the facts of the case.

  5. Mad Hatter says:

    What? What? Is this Bashin’ Bob Gilson actually acknowledging something from the MSPB as useful?

    • Truth says:

      Anyone who would defend MSPB obviously has no experience with them. Agencies and MSPB are well aware that as long as they violate all the rules (denying a career tenured employee their due process rights – even the minimum 30 day warning and chance to respond), the victim loses their NTEU representation once terminated, so the victim (with their salary illegally taken) cannot pay the hundreds of thousands needed for legal defense. So even where the manager has a record of mixing up him employees (and the files prove it), those files (on the wrong employee) are never fixed since obviously with no salary, no one can fight this crime.

      Ironically, management is fighting HR 2579 which would take away a manager’s salary when under investigation (these are IRS managers who have been charged with horrific crimes, yet get to “plead the 5th,” etc.. unlike their victims who have no charges against them, yet are denied their union grievance due to the agency violating all rules). HR 2579 (which will most likely not be passed anyway) does not go far enough since it needs to take away ALL due process rights from the managers as is done to their non-management victims. Only then will these managers ever realize the seriousness of violating a non-manager’s constitutional right to due process.

      • Manage This! says:

        Well, Truth – I’ve been through the process and much as I am against replying to your babble, it becomes more than clear that you did something for which no employer should be made to tolerate. I have my suspicions, but I will leave them as just that.

        The actual process of a clean record does result in just that – a clean record – and it does not cost hundreds of thousands. It cost me a total of $4,500 to win my case against my employer who violated three of the basic tenants of career employee terminations. My record is and always has been superior+ performances with lauds and bonus’ to support them. Having said that – the catch to my termination came because I went up against an entrenched “family member” of a manager in my department and exposed her for the fraud she was perpetrating. Working 3-4 hours out of an eight hour day and showing up two or three days a week while collecting full time pay and taking no leave was just too much for me to accept. I’ve heard they are now under investigation by the IG for this and their treatment of Veterans – which I also observed being abused. That agency has had more filings against them than any other to my knowledge in relation to the size of the employee base. In retrospect, I should have punished them with a monetary compensation for the stress they created – but that is not what I was after nor needed.

        I am happy with the work I am doing for another agency and pleased by the work/efforts the MSPB took to address that other agencies abuse of its power by its manager and the nepotism within its ranks. This rewrite of the expunge rules is necessary to ensure it is done correctly and uniformly across all cases where it is both fitting and appropriate.

        In no way would I consider anyone – agency or person – entitled to a clean record if there was any illegal activity involved – especially for some of the things that people do with their computers or when they have purchasing power and think they are beyond scrutiny. Those individuals’ abuse and their betrayal of public service should be rewarded with a quick end and prison time both fully documented to prevent their ever having access to a job of any worth. That should be sufficient deterrent for most who value their work and service.

        • CancerFromIRS says:

          You hit the nail on the head – as in my case, nepotism was at the root of the problem. MSPB can do all the wasteful studies they want, but failure to enforce the nepotism laws will negate any efforts to fix the corrupt system.

        • CancerFromIRS says:

          Again, in my location, $ 30,000 will not even get a career tenured employee a hearing at MSPB. And this is an employee with no charges against them (soon to be replaced by a manager’s daughter). They know that by attacking while you are on vacation, you will be taking care of your kids and will be in such a state of shock you will end up in the hospital. NTEU will tell you that once terminated (even though there are no charges against you, and only excellent evaluations for your entire life, they cannot enforce your union grievance since IRS did not follow proper procedure (since they are, as we’ve seen in the news, accountable to no one).

          • theinnerring says:

            how many identities do you have?

          • CancerFromIRS says:

            I didn’t wish to have more than one, but couldn’t sign in with it.

            Also it should be noted that if you are terminated without due process, the agency can even put write-ups on the wrong employee’s work in your file, your evaluation can be dated for a time when you were not even an employee, etc. There is nothing you can do since your salary is gone and since NTEU will not represent you once IRS terminates you without following the proper procedure (minimum 30 day warning and chance to respond) since they’ve illegally taken your salary and only means of defense with salary gone. This is how they make sure no one can hold them accountable, and why IRS is out of control in their abuses. Again, HR 2479 for managers (while it doesn’t go nearly far enough and still allows these corrupt IRS managers their due process rights) would at least take away their salaries so that they’d have a bit of an idea of the pain they inflict on completely innocent victims. Unfortunately NTEU and management are fighting HR 2579, and Democratic Congresspeople in my state are trying to stop it, so I’m sure it will never pass, and they will never be held accountable.

          • theinnerring says:

            a simple answer would have sufficed. we’ve all read your story over and over and over and over and over…….

          • CancerFromIRS says:

            Yet again, there’s nothing to justify it, and nothing is done to stop it. Others may not know until they experience it, and these are facts that all dues-paying NTEU members need to know, from someone who experienced it first hand. Good to have a “heads up” that NTEU will not protect career tenured employees from these IRS management abuses – once IRS violates the minimum 30 day rule, they can do as they please, and they do.

          • AFGELocalPresident says:

            Let me preface this commentary by pointing out that I am with AFGE, not NTEU. Having said that, it sounds like your real problem, regarding your due process, is that the enforcer (your Union) dumped you once you could no longer pay dues.

            Your Union retains jurisdiction over your case, even after termintion, for the purpose of seeing it through to conclusion; that is – IF THEY WANT TO DO THAT. It sounds like you have a Union-problem first and foremost. Relying solely on your allegations, it sounds like your Union abandoned you, which is unfortunate if true because a major part the very premise of the Union is to protect employees from unwarranted, or unjustified personnel actions.

            However, if your Union knows something about your case that leads it to believe it is unwinnable, then it has a fiduciary obligation to all its members to disburse funds in a prudent and responsible manner and not “throw money into a hole”. This is probably why others, here, think there is something fishy about your situation. Or, your Union just does not care about its non-dues-paying, former employees who are unlawfully terminated. I can’t imagine NTEU operates that way.

          • CancerFromIRS says:

            NTEU was well aware that I was in the right, but they claim that they end representation once the victim is terminated (so IRS wins by doing it suddenly, without the minimum 30 day warning and chance to respond). So you lose representation when you need it most, when the agency is being the most abusive (blocking the minimum 30 day warning and chance to respond, attacking the victim while on vacation, trying to care for the their children). My union rep (and the others) knows all about the abuses of this notoriously abusive “manager” who acted like he was on drugs (constantly mixing up his employees, even in their evaluations) and even said he knew it was the manager (not me) who needed to be fired, but the union VP in my area was good friends with the the sleazy hiring manager whose daughter needed my job (she was in the process of applying for same job in same POD and received the job immediately after they forced me out). She continues in my job to this day.

          • CancerFromIRS says:

            NTEU does operate that way – they collected my dues for 20 years and yet provided no legal help whatsoever when I desperately needed them, even while the union VP in my area stated that he knew I was a career tenured non-probationary employee with full due process rights. Same union vp helped the hiring manager force me out of my POD (breaking my seniority under the union contract) to this notorious “druggy manager”in another POD where 10 agents had just walked out, apparently in protest. Union vp’s good friend, the sleazy hiring manager, was extremely anxious to get his daughter hired in my place (which he did – she continues in my job to this day). She was a former “library worker” – victim of the unemployment crisis – and replaced 2 highly qualified CPA/MBA’s who were forced out for no apparent reason. NTEU is beyond corrupt.

          • CancerFromIRS says:

            Yes, there were a lot of “fishy” things – nepotism for one (the hiring manager’s daughter replaced me soon after settlement, explaining many of his cruel actions at the time – she was an inexperienced library worker who replaced 2 CPA/MBA
            s unfairly terminated without due process). Also extremely fishy was the conduct of the manager who appeared to be on drugs – long pattern of mixed up behavior which I can prove since my files contain the wrong employee’s name, wrong dates, wrong everything (and I had just been transferred out to him – also “fishy” that 10 agents had just walked out of same POD, apparently in protest (and the fact that he was removed from his management position in the past for 5 years due to similar abuses). They get away with every crime as long as due process rights are denied – I really needed oral testimony to full explain the abuses.

    • Manage This! says:

      Yes, I was surprised to see what he wrote here as well. After a read, it seems there is some good that will come of the rewrite though until it is fully challenged, who knows what loop holes will show up that can cause more troubles on both sides.

Top