You Get What You Paid For – Part II

The author discusses the case of an employee who could lose her job through no fault of her own due to a mistake made by her agency’s human resources department. He describes the latest details of the case and what he believes to be the broader implications of the situation for federal employment.

My last article, by this title, talked about a young woman, with more than five years of government service, who could potentially lose her job through no fault of her own.

OPM did an accountability review and determined that she initially received a wrongful appointment because her agency’s HR department made a big mistake in rating her under a Category A rating process. She has requested copies of all of this material concerning her initial rating and ranking, but her agency has yet to turn over to her any material or the correspondence with OPM surrounding their findings, and her status.

OPM determined this to be an illegal appointment because they determined that she should not have been in Category A. Again, she is entirely blameless in this finding, which by the way took her agency several years to let her know this. God only knows what was occurring in the intervening years, but OPM’s regulations state that she cannot be given credit for her prior years of service and enjoy the fruits of her prior labor because this was an illegal appointment.

The outcome to this fiasco has good news, and news that is yet to be determined. As a part of the corrective process, her agency was to re-announce her position and she would have to re-apply, and if she were within reach her alleged illegal appointment could be converted to a “new” appointment.

That step has been accomplished, and she has now been re-appointed. The news that is still pending is whether her prior years of service will count. Her agency in mid-June did request a variance from OPM’s acting director. The results of this request are pending.

In the opinion of this writer, OPM should recognize that failure to grant this request would only add a further injustice upon a person who is innocent of any wrong-doing. More to be learned.

In May, 2016 she filed a FOIA and Privacy Act request with her agency for all of the records behind her situation. Her FOIA/Privacy Act request was assigned acknowledged as being received on 10 June, sometime later than the actual submission, and assigned a tracking number. On 27 June 2016 she was notified by email that under 15 CFR 4.24(d) she would need to submit notarized proof that she is indeed the person making the request.

While the cited section does exist and can provide for such a requirement, this is the first time in my experience (having previously served as a regional FOIA officer for approximately 18 years) that this has been invoked, especially for an employee who is well known to her agency. The 20-day clock to respond begins upon receipt of a proper request. In other words, this is nothing more than bureaucratic claptrap designed to buy time by her agency, and to delay their response even more.

For an Administration that has preached transparency throughout all of government, to put her through such a demand is only designed to frustrate her even more.   The original FOIA Act was passed with the Congressional intent to disclose, unless one of the exemptions clearly and demonstratively apply.

FOIA requesters generally do not have to justify or explain their reasons for making requests. The why is important in two circumstances:

  • When expedited processing is requested or
  • When a fee waiver is requested

In the interest of fairness and justice on behalf of a valued employee, I am sure that a reasonable person would conclude that an expedited response should take place, especially since her agency kept her in the dark for nearly four years.

All of this is taking place at a time when federal agencies should be doing everything in its power to recruit and retain a younger workforce. The results of a 2015 Partnership for Public Service study conducted by the Office of Personnel Management painted a grim future for the federal workforce. During the five years from 2010 to 2015 the percentage of federal employees under age 30 dropped nearly three percentage points to 6.6 percent, and the percentage of the federal workforce under age 25 declined from two percent to 0.92 percent.

As more and more of the baby boomers are expected to retire in the near future, these divergent tracks are not good. For millennials, the desire to stay in the federal workforce has motivated the desire to develop their skills, the aspiration to see that their efforts will make a difference, and the ability to see opportunities for future growth. The reality of tight budgets, pay freezes, Congressional attacks on benefits, a private sector sniping at allegedly over paid civil servants, and complacency among the older workers has not inspired the younger generation to view government as a valued employer to want to remain for a career.

If there is any shining moment that her agency has done right, it is that they have done nothing to adversely affect her leave balances, service computation date, etc., until OPM renders a decision on their request for a variance. Is there little wonder that a bright, young and motivated person has been subjected to needless stress that I am sure has made her wonder why am I still working for the federal government?

OPM and her agency has a huge opportunity to make things right by her, and to start to restore her faith that public service is an honorable career. Regulations are created by people, and waivers in the interest of good faith, and fair play when a wrong occurs can be made by the very same individuals who are there to protect the merit principles.

How this play will end is yet to be written, but as a former human resources officer, I know what has been done to date appears more like a case study in what not to do. We shall see.

About the Author

Since retiring in 2011 after nearly 40 years of federal service, Bob Dietrich has been active in training supervisors and HR staff on FLSA and FMLA. He has a three-day course that he can bring to your agency, and he may be reached through the website.