If an agency takes an adverse or disciplinary action against a federal employee, should he (or she) have the right to appeal the decision?
The vast majority of readers would undoubtedly say "yes." Federal employees have had the right to appeal actions taken against them for decades. The Civil Service Reform Act of 1978 (CSRA) was portrayed as simplifying the appeals process, create a system for faster decisions, and made it easier to take action against a federal employee who was performing poorly. The popular perception was that it was not possible to fire a federal employee for performance and President Jimmy Carter wanted to change the process to create a more efficient and effective government.
While the CSRA certainly changed the appeals process by creating agencies such as the Merit Systems Protection Board and the Federal Labor Relations Authority, the new law didn’t do much for simplifying or speeding up the process of appeals available to federal employees.
In theory, one appeal will suffice for one action. For example, a federal employee who is fired would be able to appeal the action through the negotiated grievance procedure and to arbitration, assuming the employee being fired is in a bargaining unit and the union is willing to take the case to arbitration. The disadvantage for the union is that in many cases the cost of arbitration may be prohibitive and the union may not want to take a case because it could be expensive.
An employee could also file an appeal with the Merit Systems Protection Board (MSPB). It is free in the sense that neither the employee nor the agency will pay the cost of the appeal. The MSPB is supported by taxpayer dollars and its staff, offices, etc. are available to handle appeals such as those from a federal employee who is fired.
Depending on the circumstances, an employee could also file an appeal with the Federal Labor Relations Authority (FLRA). For example, if the employee being fired was active in the union or filed a number of unfair labor practices or had engaged in some legitimate union activity, he may contend the agency is getting rid of him for exercising his right to form or assist a union.
And, as most readers know, virtually anyone working for the government today can file an equal employment opportunity complaint (EEO) for some reason whether the reason is based on factors such as age, religion, color, race, or ethnic origin.
It is also possible our hypothetical fed being fired has been a whistleblower in the recent past and he may also choose to contend that he is being fired for having saved the agency and the taxpayer a boatload of money which the agency was squandering on illegal or improper projects or objects. This would also open a potential avenue of appeal with the Office of Special Counsel (OSC).
Keep in mind that these various avenues of appeal are not just a one shot deal. That is, an original decision can usually be appealed to a higher level. In each instance, the case may go from the original hearing officer or arbitrator or admnistrative judge to the next higher level and possibly to court or some other level of review.
In effect, it is possible for a person who understands the system, has a lot of time and energy (or is just really mad) and has a very bright lawyer/union representative, to ensure that all avenues of appeal will not be exhausted for months or years.
The appeals process takes a lot of time, a lot of money and a thick skin. A supervisor who embarks on this process may find he or she spends more time working with agency representatives outlining the facts, preparing for hearings, testifying in hearings, or defending his or her actions up and down the agency chain of command. And, if the representative is good and wants to create a better settlement scenario, it is possible the supervisor will be mentioned in the local press in some unflattering way as being involved in the firing of an employee who will be portrayed as a local hero fighting for truth and justice.
Depending on the agency’s level of frustration, it may decide that trying to fire an employee (even one who really should be fired) just isn’t worth it. It may transfer the employee, put him in a job where he can’t be seen or heard or cause as many problems, or try to make his work life miserable enough so he will resign and forego any right of appeal.
In the meantime, while this process is being played out, the morale and effectiveness of the organization where the employee works may be spiraling down. Anger, frustration, tension, and a sense of inability to control the situation will frustrate everyone indirectly concerned with the case.
And, keep in mind, from the agency’s perspective, it can win every appeal except one and the employee who was fired may be back on the agency’s payroll from winning that one appeal.
From a taxpayers standpoint, this process does not seem to contribute to an effective, efficient government. In some cities with a substantial federal presence, one can stand downtown and see separate offices for the FLRA, MSPB, EEOC and OPM and, possibly, the OSC since some employees are apparently being shipped out of Washington, DC.
No doubt the federal government is a gargantuan operation. Some will argue that an organization that spends as much as Uncle Sam spends each year can afford to have several separate agencies handling different complex appeals processes for federal employees at a cost of $50-$100 million a year in order to maintain the expertise necessary to handle these appeals with their complicated rules and procedures.
A reasonable guess is that the Bush Administration has decided that the current appeals process is expensive, inefficient and ensures some people remain on the federal payroll who do not deserve to be there. And, rather than just creating one appeals board to handle all federal appeals, a more radical approach is about to descend on the executive branch.
It is too early to know how the final structure will look in the Departments of Defense and Homeland Security. There is little doubt that one goal of this administration, as it was with the Carter administration back in 1978, is to create an appeals process that will be quicker, faster and more efficient. Jimmy Carter enlisted the support of the American Federation of Government Employees and went around the country with AFGE’s National President touting the advantages of the new law. Since the 1970’s, federal employee unions have gone out of their way to portray most Republicans as political enemies and President Bush has not displayed President Carter’s personal interest in reforming the civil service. The federal employee unions are now paying the price for their approach to playing politics at the national level. Without a doubt, the Bush administration has taken a much different approach with regard to the unions than the Carter administration took as the CSRA guaranteed stronger unions that are virtually impossible to remove from power once selected by a majority of employees voting in an election. The Bush approach will strip away much of that power gained by the unions 25 years ago.
The Carter approach failed in creating as it did not create an appeals system that is simpler, faster or more efficient. The CSRA approach seemed radical at the time much as the new changes in the Departments of Homeland Security and Defense seem radical now.
No one knows if the Bush approach will be more successful. One thing is certain, however. Any new system will create considerable litigation designed to modify or tear down the new structure. The ultimate winner may be the lawyers who get paid to challenge and litigate the new process.