The House of Representatives recently passed a bill making it much easier to fire employees at the Department of Veterans Affairs. Among other changes, the bill, called the VA Accountability Act of 2015, removes the usual due process protections and allow the Secretary to fire employees quickly. It shortens the period for filing an appeal to MSPB to 7 days, and requires MSPB to issue decisions within 45 days.
That 45 day requirement is one of three troubling aspects of the bill. If enacted into law, it would require MSPB to issue a decision on an appeal within 45 days and, if it did not, the action would be final. So that means the penalty for MSPB not getting it done on time is that the employee loses.
The second problem is that the bill places the final decision in the hands of an MSPB administrative judge and does not allow the actual Merit System Protection Board members, who are appointed by the President and confirmed by the Senate, to make a decision on the case. Think about that – the leaders of the agency cannot make a decision and it is left to a career employee of the agency.
While some folks say that is not due process, the bigger weakness some of my attorney friends see is that it may not pass Constitutional muster based on the Appointments Clause in Article II of the Constitution.
The Civil Service Reform Act of 1978 created the MSPB, required Presidential appointment and Senate confirmation of the 3 Board Members, and gave them the authority to hear appeals of actions taken under the provisions of Title 5 and Title 38 and other laws and regulations. This bill assigns the appeals to the agency, but takes the authority away from the appointed and confirmed Board and assigns it to members of their staff. People who know far more about the Constitution than me tell me that is a big problem.
While the intent of making employees more accountable is sound, the bill is unlikely to survive a Presidential veto threat. Even if it did, the third problem is that it will most likely not change anything, other than setting up the rest of the Federal workforce for the same type of treatment. We will not see a big increase in the number of fired employees, but those who are fired will have far fewer legal rights than they do today.
While the House was passing this bill, the MSPB was writing and issuing a report tilted “Adverse Actions: The Rules and the Reality” that debunks the myth that Federal employees cannot be fired. MSPB found that Federal managers do not understand and rarely use the authority they already have to fire employees for misconduct or poor performance. Even in cases where the employee would have no appeal rights, managers do not take action.
One of the most interesting findings in MSPB’s report is that managers who responded to their survey applied the standard of proof “beyond a reasonable doubt” to take action against an employee. That is the standard used for criminal cases and it is not required by the law, regulations or agency policies. The proper standard is a “preponderance of the evidence” which is a much lower burden. The result is that managers often feel they do not have enough evidence when, in reality, they have more than enough. The problem isn’t the law, it is managers’ understanding of the law.
There are other problems that MSPB’s report did not address. One is that many managers (rightly so) are afraid to take action because they do not believe their agency leadership will support them. I have seen many cases where senior leaders simply want to avoid controversy, so they choose to reassign problem employees rather than dealing with the misconduct or poor performance. That is probably the worst course of action they could possibly choose. I spoke with a friend who is a senior executive in the VA who had one employee who had been reassigned a half-dozen times before the employee was assigned to her team. She recognized the problems, dealt with them, and the employee was fired.
Another problem is the tendency of many agency lawyers to want to settle every case rather than risk losing one. Their unwillingness to take the cases all the way causes managers to avoid removals or downgrades because they fear the lawyers will settle anyway and they will get the employee back.
The last, and possibly most common problem, is that managers are simply unwilling to take adverse actions. No one in their right mind would say that firing employees is easy and it certainly is unpleasant. The concept of booting a poor performer is easy – the reality of firing a real, live human being is another thing entirely. The problem with that is that it takes into account only the adverse effects on the employee being fired, but ignores the impact of poor performance or misconduct on the rest of the employees. Every year the Federal Employee Viewpoint Survey results show that employees do not believe their managers will deal with poor performers. In 2014, only 28% agreed with the statement “In my work unit, steps are taken to deal with a poor performer who cannot or will not improve.”
So where we are is that managers do not understand the burden of proof standard for dealing with poor performance or misconduct, they do not believe their senior leaders will support them, they do not trust the lawyers to see the case through to the end, and they are unwilling to do something they view as bad. That says clearly that taking away employee rights will result in a less secure workforce, but it will not make a real difference in agency performance. If we want to see things change, the real answer is better training for managers and senior leaders and lawyers who will support the actions they take.