How long does it take to fire a very determined federal employee? Specifically, how many years and how much time and effort can it take to resolve a termination case when a fired fed decides to exercise all, or at least most, available appeal rights?
If you guess weeks or months, you are not involved in the handling of federal sector removal actions. Some cases can take years and involve the time and effort of numerous attorneys and human resources experts to see a case through to completion. Many of the people who were initially involved in the decision will often leave the agency with the passage of time while the case drags on from one appeal to another.
Here is a case in point. It involves a smart, determined former federal employee who has the ability to obtain publicity and support from interest groups and an agency that also apparently believes it has done the right thing. And, in fact, the agency’s action has generally been upheld by third parties reviewing the case.
Back in 2001, the National Park Service issued a press release announcing the appointment of the “First Woman Park Service Police Chief”, Teresa Chambers. The announcement proudly proclaimed that the agency head is …”very excited that Chief Chambers has accepted this historic challenge. She is a highly qualified professional law enforcement officer, with the distinct ability to enhance our department. I look forward to working with Chief Chambers and welcome the high level of enthusiasm she brings to this position.”
The initial announcement may have been the highest pinnacle of enthusiasm in the working relationship. At a minimum, the “high level of enthusiasm” was probably diminished for both the agency and employee in a relatively short time.
On December 2, 2003, the Washington Post published an article quoting and otherwise describing statements the appellant allegedly made concerning her organization’s need for additional resources. On December 5, 2003, she was placed on paid leave and on December 17, 2003, the agency proposed to remove her based on several specifications, according to the MSPB decision, and included:
- Making public remarks regarding security on the federal mall, in parks, and on the parkways in the Washington, D.C., metropolitan area;
- Improperly disclosing budget deliberations to a Washington Post reporter;
- Improper lobbying;
- Three specifications of failing to carry out a supervisor’s instructions; and failing to follow the chain of command.
As is often the case now in significant disciplinary actions involving a federal employee, the former Chief filed a complaint with the Office of Special Counsel arguing the removal was in reprisal for making protected disclosures of information to people outside her agency. She also filed an appeal with the Merit Systems Protection Board (MSPB).
An administrative law judge found that removal was appropriate based on the charges were sustained. The MSPB agreed and upheld the recommendation.
The case then went to the Court of Appeals for the Federal Circuit. The Court concluded that the MSPB had applied an incorrect standard in evaluating the appellant’s claim of reprisal for her alleged disclosures of risks to public safety. The Court sent the case back to the MSPB for application of the correct standard.
The MSPB has now issued its latest decision in the case. As complicated as the case became through the various appeals, it may not be surprising that the two MSPB members saw the case in a different light. The MSPB Chairman found she had made some protected disclosures but that the agency presented clear and convincing evidence that it would have taken the same actions in the absence of those disclosures. The MSPB Vice Chair did not think Chambers had made any protected disclosures.
But, in a classic case of a distinction without much of a difference, both decision-makers agreed that the firing was appropriate and sustained the removal of former Chief Chambers.
So, about five years after the decision to fire Chief Chambers, has the case reached the end of this legal road? While Chambers has another job with a town in Maryland, the case may drag on for a few more months or, possibly, another year or two.
Teresa Chambers has done an outstanding job of marshalling publicity for her cause and has found herself written up in the media on numerous occasions. (See for example, Gagging the Fuzz.) She has also set up a website outlining her views on the case, the latest events through the years of filing appeals, and highlight different articles favorable to her cause. She also gathered the support of an organization called “Public Employees for Environmental Responsibility.” Her website proclaims that the Bush Administration “rushed to release the latest opinion and order by the Merit Systems Protection Board (MSPB) in Chief Chambers’ case just 12 days before the current administration leaves office.” She also urged her supporters to “Rest assured, Chief Chambers will exercise her appeal options of this decision. In the meantime let’s hope that, as an advocate of whistleblower protections, the new Chief of Staff for President Elect Obama will advocate for executive intervention in resolving this case without the need for further litigation.”
And, while the case drags on, the supporters of the embattled litigant continue to rail against the agency and to try and bring political pressure to bear on the outcome of the case. As one press release noted in October of last year: “The Interior Department could restore Teresa Chambers as Chief of the U.S. Park Police with the stroke of a pen. If this Secretary will not act to restore sanity to the Park Police, we are hopeful that the next one will.”
Some in the agency may be wondering if taking the case on was worth the time, money and effort involved in firing this former employee despite the third party decisions upholding the agency’s action. But, while the various decision-makers may have left the agency, the case is probably providing plenty of work for the legal and human resources offices trudging along through the lengthy appeals. The question of whether a system such as this actually provides “justice” or just an opportunity for continued litigation, gainful employment and a route for avoiding a final resolution is doubtful.