Is MSPB Encouraging Firing Squads?

Take a minute and read the following quote:

A Fairer and Speedier Disciplinary System.

The simple concept of a “merit system” has grown into a tangled web of complicated rules and regulations.  Managers are weakened in their ability to reward the best and most talented people-and to fire those few who are unwilling to work. The sad fact is that it is easier to promote and transfer incompetent employees than to get rid of them. It may take as long as three years merely to fire someone for just cause, and at the same time the protection of legitimate rights is a costly and time-consuming process for the employee. A speedier and fairer disciplinary system will create a climate in which managers may discharge non-performing employees-using due process—with reasonable assurance that their judgment, if valid, will prevail.  At the same time, employees will receive a more rapid hearing for their grievances.”

Great idea?  Any idea who said it? 

It was Jimmy Carter in a 1978 message to Congress selling his civil service reform legislation. Perhaps someone should have informed the president that his legislation would end up in the hands of folks whose bread and butter comes not from simplicity and fairness but from a complex, bureaucratic, petty rule driven process.

The Mess We’re In

The current leadership of the Merit Systems Protection Board (MSPB) includes a Chair who was a union general counsel and a Vice-Chair who was an assistant union general counsel. Their bios talk about all the employees they represented.  My guess is that they’ll represent them again. Only next time, they’ll do so under rules that favor employee advocates. 

In a prior FedSmith article, I compared MSPB to Emeril Legasse in that its job is to provide a cookbook for Federal Agencies trying to get the statute right.  The current Board appears to prefer to confuse Agency managers and help them fail in taking actions by rendering the process inscrutable to anyone without a law degree and an ability to unscramble eggs. 

A few examples include the Board’s new policy on the scope of what it considers like penalties for like offenses within an Agency;  what decision thought processes must be disclosed to an appellant; and the imposition of criminal case standards to Agencies dealing with investigations.  I really could go on and on and on but won’t.

So What’s the Fix?

You may have thought I was kidding in the article’s title about using firing squads.  I say that only slightly tongue in cheek. 

The average line manager in the government has a job to do, a fact lost on MSPB.  Firing an employee isn’t or shouldn’t be an episode from Law and Order. Getting canned isn’t like getting sent to an Alabama prison on MSNBC’s Lockup. 

Get over yourselves MSPB, it’s just a job. In the current economy, the average out of work or even employed American Joe or Mary would literally take to the barricades if they had any inkling how MSPB wants non-performing or acting out Federal employees to be treated. A case in point is the GSA scandal. The news said these folks were on administrative leave. Do you think the average citizen understands that that means time off with pay and no charge to leave. Of course the stress these folks are suffering will probably result in a worker’s compensation claim (you heard it here first).

The fix is a firing squad. Basically, a group of five positions assigned when there is evidence an employee engaged in misconduct or performance. So who would these folks be?

• An employee/labor relations advisor (from HR)
• A trained administrative investigator
• An attorney specializing in employee relations/EEO law
• A permanent proposing official
• A permanent deciding official

 So how would this work?

1. The employee’s first and second line supervisor would advise the HR advisor of the incident(s) involved or of their actions so far if performance based.  
2. The advisor would meet with the attorney and proposing official who would decide whether to appoint an investigator to look into the matter.  
3. The investigator is only involved in fact finding according to a strict case file completion process.
4. The case file goes back to the proposing official who may direct the managers involved to take needed procedural and substantive steps if the case file so indicates.  
5. The case might end here and go no further unless further facts develop or the matter is satisfactorily resolved.  
6. If the case file warrants action, the proposing official, based on the record before him or her, consults with the HR advisor and attorney on next steps.
7. The proposing official may issue a proposal or authorize a settlement discussion.
8. If a proposal issues, the employee presents his/her reply to the deciding official.
9. The deciding official may issue a decision or authorize a settlement discussion.
10. Absent settlement, the deciding official’s decision becomes final.
11. The action is taken and the appeal process ensues.

Points to Remember

1. Always do the right thing, procedurally, statutorily, contractually, etc.
2. The Agency would have to commit itself to a rigid case file development process attuned to the type of case under consideration.
3. Investigators would have to be thoroughly trained in finding facts including various legal warnings for witnesses, etc.
4. Strict enforcement of an arm’s length relationship between the first and second line manager and the firing squad other than the HR advisor and investigator is essential.
5. The proposing and deciding official would also be well served not to communicate on a case.
6. Any Agency employee so delegated may issue a proposal.  Anyone in the Agency so designated may decide a case.
7. The decisions would be based on the facts available.
8. The proposing and deciding official would likely not know anything about the employee involved other than the information in the case file and what is presented in a reply meeting.
9. The goal is to bring as much objectivity as possible into the process.  
10. Any (however ludicrous or cumbersome) third party rules and processes would be followed to the letter.
11. Firing squad members would not discuss the merits of a case with anyone other than an individual representing the employee or someone with a specific, written delegation of a right to know e.g., the IG, other law enforcement body or similar.

This is Crazy, Huh?

I guess there are some out there (who probably don’t advise Federal managers on discipline or performance) that I’m being paranoid, but most of us who’ve worked in this business have seen it get more difficult by the year for managers to take needed actions. I also know that managers can complicate a case by things they say or do that are out of line.  If their job is fixing airplanes, getting computers to work, balancing funds, etc., why would we want them to become pseudo lawyers to successfully weed out the bad apples?

I hear from Agency staff all the time that their experienced folks in HR and Counsel offices are retiring and jobs are often unfilled. Many Counselors tell me that they play catch up due to bad line decisions or ignorance of correct substantive or procedural obligations. The above design can get you out ahead of the curve.  Interestingly enough, it is a thoroughly politically correct concept as its goal is fairness and objectivity. Imagine that!  Whoda thunk I’d suggest something politically correct?  Certainly not the FLRA.

So MSPB, if the above or something like it happens, your advocacy law firm or union job after your term is up may get harder despite your best efforts to make it easier by creating bad law.

Anything you discern as an opinion in the above is my responsibility and mine alone.