Why Aren’t Agencies Using Easier Employee Termination Options?

By on September 24, 2015 in Current Events, Human Resources with 21 Comments

Over the last few years, the media and the Congress have done a bunch of hand wringing and complaining about how hard it is to remove a Federal employee for serious misconduct. Like the old song says, “it ain’t necessarily so.”

Bob Dietrich, another FedSmith author, former Agency HR Director and expert on suitability cases and I have spent a bunch of time lately trying to figure out why Agencies don’t focus on the effect of bad behavior on the person’s reliability to work in a sensitive position.

The State of the Law

The Federal Circuit Court of Appeals in a 2013 case decided that not only security clearance determinations were the exclusive prerogative of an Agency Head but so was the decision whether an employee could be retained in a sensitive position. Almost all Federal employee positions are at least rated “noncritical sensitive.” There is a lower level titled non-sensitive but few employees jobs are rated this way as most Federal positions include such responsibility for computer access to Agency systems, working in proximity to Agency equipment, and other such situations as a minimum.

By the way, you can find your level in box 12 of OPM’s Position Description Form marked Sensitivity. If a box other than non-critical is checked, this article is about you.

Most of us tend to think of only defense, intelligence or law enforcement Agencies needing to pay attention to security clearances or position sensitivity designations. Every other Federal Agency assesses the sensitivity of its positions as well. The standard used is whether the Agency Head or designee has determined, at a minimum, that the there is potential to cause damage to the national security, up to and including damage at the significant or serious level.  So what might employees of a civilian Agency that’s not involved in defense, intelligence or law enforcement do to determine whether an employee has affected national security.

It’s just my opinion, after all I’m not an Agency Head, but I would think that anyone working in Information Technology, dealing with proprietary or personnel information, engaged in patient care, processing payments, and a whole broad spectrum of government activities are engaged in at least sensitive work that affects our national security.

Harvard University history professor Charles Maier’s in 1990, defined it as:

“National security… is best described as a capacity to control those domestic and foreign conditions that the public opinion of a given community believes necessary to enjoy its own self-determination or autonomy, prosperity and wellbeing.”

Since it’s all over the news all the time, let’s take the issue of an allegation that a Department of Veterans’ Affairs employee ignored, destroyed or otherwise adversely affected either a veteran’s claim for benefits or the opportunity of a vet to get medical treatment. Such behavior, if proven, certainly affects the confidence of not only veterans but the serving military in the government’s historic promise to care for their service connected illnesses or injuries. It would also certainly undermine the confidence of that employee’s supervision that he/she was sufficiently reliable to continue to carry out those responsibilities or others of a similar nature.

At the heart of this is a Federal Agency’s virtually unfettered right to determine what criteria establish or adversely affect the reliability of employees in that Agency above others. The Federal Circuit, citing the Supreme Court’s landmark security clearance case, held that position sensitivity, like a security clearance, is the prerogative of a federal Agency. The bottom line in all of this is the responsibility of government to protect the Agency’s unique mission and its effect on other Agencies, other governments within the U.S., those other organizations that make up the fabric of American life, not to mention the confidence of citizens in these institutions.

This matter goes to a major component of modern politics and societal values. Simply stated, where does the buck stop? The Supreme Court, where in this time for better or worse, a bunch of bucks stop, and the Federal Circuit, at least believe that in the question of an employee’s reliability and trustworthiness, the buck stops with the Agency head.

What’s Involved?

The process, stated simply, works as follows:

  • A manager delegated the authority to review an a sensitive rating misconduct decides that misconduct has a sufficient effect on the employee’s reliability and:
    • Advises the employee of the charges and the action to be taken ie., removal or movement to another position (not required unless the Agency policy does)
    • Gives the employee an opportunity to review the charges and the basis (evidence) supporting the charges
    • Notifies the employee of his/her right to have the determination reviewed at a level above the original decision maker
  • If an employee appeals the original determination, a body within the Agency, created for this purpose:
    • Reviews the original decision
    • Determines that it is consistent with the Agency policy
    • Sustains or reverses the original decision

So Why Don’t All Agencies Use the Available Option?

To be frank, I believe the principal cause is simple ignorance. While it’s clear that a Defense employee with access to the classified manuals used to help them maintain an unmanned vehicle used in combat is likely in a sensitive position at one level or another, other Federal positions are not so clear, at least historically.

At this moment in time, I think all would certainly agree that if an Agency has information that the Chinese, Russians or others want to hack is in a sensitive position whether that information is held by the Federal deposit Insurance Corporation, the Small Business Administration, EPA, or another Agency as long as the possession or use of information can harm an American interest if held by a hostile party. Whether the hostile intent has political, military, economic, business, credit, or public confidence effect, it may all come down to the reliability of an individual to provide needed protection.

I saw a headline that quoted from subsequently ousted OPM Director Katherine Archuleta in the Federal Eye in the Washington Post that read “Federal personnel chief: ‘I don’t believe anyone is personally responsible’ for Chinese hack”. Well, maybe so at OPM but how about your Agency? Would your mission and operations, if compromised, adversely affect an American interest? Think real hard before you say no.

In upcoming articles, Bob Dietrich and I will try and explain this process further. If you’d like to discuss how your Agency might initiate or strengthen its position sensitivity policies, get in touch with one of us.

As always my opinions are mine and do not reflect those of anyone else unless you’re with me. Drop me or Bob Dietrich an email here at FedSmith and we’ll help you set up a program to accomplish what this article is talking about.

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

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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