It's Time for Another Civil Service Reform Act

Over the last several years we periodically read that Congress is contemplating another civil service reform act.  For this writer it is long overdue.

If you are having a bad day, be glad your name is not Katherine Archuleta, Director of the Office of Personnel Management (OPM), or your employer is not OPM.

This article is not to pile on when a group of federal employees are down, or to take my turn at “whack-a-mole.”  However, I have often used a quote from one of my favorite Presidents, “Give’ Em Hell Harry” Truman.  His famous line was “I do not give people Hell, I just tell the truth on them, and they think they are in Hell!”

OPM is fortunate that Harry is no longer around given their many miscues over the past few years.  Remember this is the Agency that spent over $100 million of taxpayers’ monies to automate the retirement system, and then pulled the plug on it because it would not work.  In fairness, compared to standing up the Affordable Care Act website, OPM is in good company.  Taking something bad and comparing it to something worse does not make the bad look better.  Nevertheless, it was still a miserable failure, and the string of miserable failures coming from OPM, and its lack of support for the agencies, is really giving the federal community, especially the human resources community a very bad name because of guilt by association.

Now, this is not an article from a disgruntled federal employee.  Quite the contrary, I had a fabulous career, and I look back on it with a great deal of pride for my accomplishments, and the many accolades that I received.  And, in my early career I revered the Civil Service Commission, but later learned that OPM lost its virginity and independence to the political process.  If you think I am alone, then read Bill Wiley’s stinging article in FELTG on OPM’s issuance on administrative leave, or Bob Gilson’s article on the Hopper vs. Archuleta’s decision by the Supreme Court, and OPM’s lame attempt to defend its actions on suitability.

Better yet, look at OPM guidance relative to the Family and Medical Leave Act (Title II employees) as compared to the guidance from the US Department of Labor (Title I employees).  The former is like a rusty American Flyer wagon, and the latter is a formula 1 racecar.

At one time if a probationary period employee was on LWOP for 22 days or more, an agency could extend the probationary period by an equal amount of LWOP beyond 22 days.  The ability to extend the probationary period was struck down by the MSPB in its decision of Gadsden v. Department of State.  Yet, OPM’s current website makes it appear that such an extension is still possible.

Oh, by the way, the Gadsden decision was May 12, 2006.  You might think the human resources policy agency might be able to update its website sometime in the last nine years.  I guess timeliness is not a critical element at 1900 E Street.  In fact, I know it is not.  I wrote a letter to Director Archuleta in early February 2015.  The response was four months later, and the content of the response revealed the author had no clue as to the contents of my initial letter.  Another former associate sent OPM a FOIA request in November 2014.  He did not receive a response until the second week of June, and that response too, omitted some salient points of his FOIA.  The statutory timeline for this FOIA response was missed by the length of a marathon.

It is Bob Gilson’s article, Circuit Says OPM Dropped the Ball of Suitability, MSPB Can Now Say Hire Liars, that motivated me to write this.  For those of you who have not read his article I urge you to do so. 

Since I retired over four years ago I have taught many courses on suitability adjudication, and Bob’s observations are spot on.  Suitability determination to occupy a sensitive or public trust position is not about skills and abilities, it is all about character and integrity.

Since OPM lost the Aguzie decision in February 2011, its track record before the Board on removing employees who are unsuitable is not enviable.  Satisfactory performance never trumps fundamental flaws in a person’s character and integrity.

Bob Gilson clearly identified the eight major areas of concern that might render a person unsuitable.  Because of OPM’s lame defense in the Hopper case, Bob correctly concluded that MSPB can now say “hire liars.”

I have no quarrel with my esteemed colleague’s characterization of what occurred in this case, but I am sorry, if I call someone a “liar,” that is about the worst attribute with which I can tag them.  Trust is the fundamental key to any relationship, especially a marriage, and the employer and employee relationship.  As a manager, I never would want a liar as a part of my team. I cannot trust them.

While I have not been able to find the Congressional history on 5 U.S.C. Chapter 731, I cannot believe the Congress intended that an adverse suitability determination on a person, who is now a tenured employee, and falsified their background to achieve their initial appointment to the federal service, should receive the same degree of consideration as any other misconduct under Chapter 752.  However, until Congress weighs in on this, that is the current case law.

Christian Davenport just published an excellent article in the Washington Post, Critics Fault Vetting for US Security Jobs.  His article put a laser beam on the problem where contract investigators are paid more on the quantity of the investigations they close, as opposed to the quality and content of their investigations.  The article stated how investigators frequently turnover because the emphasis is wrongly placed on speed versus thoroughness.

This issue became quite evident as a result of Aaron Alexis shootings at the Washington Navy Yard. This same article quoted Carolyn Martin, president of the American Federal Contract Investigators Association who stated that the system is just “producing shoddy investigations.”

Davenport’s article also highlights another major problem.  Agencies must have these investigations completed before the appointee completes their probationary period, and becomes a tenured employee.

Now add to that OPM’s stubborn resistance to allow an agency to use the content of its investigation to support a removal action.  In other words, agencies must take OPM’s lead and do their own investigations to support their adverse actions, even during the probationary period.  How do you spell waste and abuse?  Congress are you reading this?  It is often rumored that you are contemplating changing the probationary period to two years. There are many good reasons to do that.

Now if I am playing a game of bridge I must just say – let’s review the bidding.  It is bad enough that OPM is inept at defending these serious cases with a quality legal defense of its actions that can be sustained when it directs an agency to remove a person because they are unsuitable.  Then, we also have MSPB that is also shoveling salt onto the wounds.

In the case of Denise Doerr vs. OPM, OPM charged her with criminal and dishonest conduct and also charged her with material and intentional false statement or deception in the appointment process, by failing to disclose her prior criminal conduct.

In a split decision MSPB overturned OPM’s directed removal and ordered her reinstatement and to be made whole.  Chairman Neil McPhie wrote a dissenting opinion, especially after the majority agreed that OPM proved her criminal and dishonest conduct, but did not believe she was untruthful in her completion of her Declaration of Federal Employment, SF-306.

She was appointed to a physical science specialist position with the Department of Labor, OSHA, in direct support of the safety and health officers.  I can just hear her testifying on behalf of OSHA as an expert witness, and listen to some defense counsel excoriate her credentials as someone who lied to obtain her federal position.  What was Ross Perot’s famous line he used when running for President, something to do about “the great sucking sound” of an issue going down the toilet?

It is bad enough that the Board second guessed management’s determination in this case, but what is worse yet, I am unaware that OPM ever appealed this decision in court.  I am afraid agencies and suitability adjudicators are in a poker game, and the deck is stacked against them.  Who is going to pay this price – the taxpayers with a decline in the quality of the federal workforce? If we wonder why management is so reticent in taking on problem children in the workplace, a casual perusal of case decisions, and the quality of support from the lead human resources agency can answer that question quickly.

OPM’s solution to the suitability problem is training.  Presently, OPM’s required training for anyone serving as a suitability adjudicator is a two-week course at OPM in Washington, DC.  Unless they have been living on the International Space Station, a two-week training course is a non-starter because of the cost of tuition, two weeks of TDY costs, and a person being away from the office and their regular duties for that length of time.  Now, let’s compound this dumb decision by making it mandatory every three years.  With shrinking fiscal resources, and the loss of experienced personnel specialists, this decision is a candidate for the Darwin Awards.

Is there a need for another meaningful civil service reform act?  My answer is overwhelmingly “yes” for the reasons in this article as well as a host of other reasons dealing with labor relations.

Congress also needs to seriously look at the current OPM.  That is one agency that needs an operations audit, and a look at the quality of the talent they are hiring.  I am not optimistic given the glacial and dysfunctional speed to which Congress moves.  Bob Gilson, you and I will not be invited to testify because sadly we will be looking at the grass from the wrong side by the time the Congress decides to do something.  But until then, keep on writing because you are a font of knowledge and wisdom that our former colleagues, and new employees so desperately need.

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

About the Author

Bob Dietrich has more than 37 years of federal human resources experience and he is a widely known trainer on FMLA, FLSA, Employee and Labor Relations, HR for Supervisors, and is available to bring training to your agency. It is far cheaper to bring the instructor to the class as opposed to the class to the instructor. He may be contacted through Dennis Hermann & Associates.

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