In 1978, the Democrats controlled the three houses of government. Then President Jimmy Carter, a one termer, offered the Hill a reform of the U.S. Civil Service. On October 13, 1978, Carter provided a statement upon the occasion of its signing into law that included the following:
“This legislation will bring fundamental improvements to the Federal personnel system.
It gives managers more flexibility and more authority to hire, motivate, reward, and discipline employees to ensure that the public’s work gets done. At the same time, it provides better protection for employees against arbitrary actions and abuses and contains safeguards against political intrusion.”
Almost no one who has dealt with the effects of this law on the ground could say that it gave managers more flexibility or authority or fundamentally improved the Federal personnel system.
Let’s look at what is currently involved in taking two kinds of action under this law to deal with employee misconduct, the least serious i.e., a reprimand and the most i.e., a removal based on the way Carter’s law has been interpreted.
Issuing a Reprimand – What’s Involved?
A reprimand is an Agency disciplinary action putting in writing a manager’s dissatisfaction with an employee’s misconduct. It is generally the lowest form of discipline the Agency can take. The action is temporary and cannot be placed in an employee’s official record (Official Personnel File) for more than three years at most upon which it must be removed.
A reprimand doesn’t require a notice unless the union agreement requires one.
A reprimand is not appealable to the Merit Systems Protection Board (the Board) unless the employee involved claims It is retaliation for whistleblowing or violates the rights of a current military reservist, dischargee or retiree in which case the Board may take jurisdiction. If it does, the employee has all the rights he or she would have had if the Agency had fired them including a full evidentiary hearing before an administrative judge of the Board, a Board review, an appeal to the Federal Circuit Court of Appeals and a petition for a writ of certiorari to the U.S. Supreme Court.
Upon a claim the reprimand resulted from discrimination based on race, color, religion, national origin, age, gender, disabling condition, sexual preference or reprisal for having filed a previous claim based on one of these claims in an unrelated matter, the employee gets the right to an EEO counselor, who will file a report; to file a formal complaint resulting in an investigation; a decision by an Agency official or Panel created to deal with such claims; an appeal to the Equal Employment Opportunity Commission(EEOC); an appeal of an adverse EEOC decision to a U.S. district court: an appeal to a U.S. Circuit Court of Appeals; and a petition for a writ of certiorari to the U.S. Supreme Court.
If the employee is in a bargaining unit represented by a union, he/she gets to file a grievance to two or three levels of Agency management and the union may opt to take the matter to a “neutral” arbitrator. Once the arbitrator rules, the decision may be appealed to the Federal Labor Relations Authority(FLRA). If the FLRA finds against the employee/union, that’s the end of it unless the union also claimed that an unfair labor practice was involved. If so, the matter be appealed an appeal to a U.S. Circuit Court of Appeals; and petition for a writ of certiorari to the U.S. Supreme Court.
In all the above, the burden of proving the reprimand is warranted falls on the Agency.
Who Pays for All of This?
Except for an arbitrator’s fee, which the union and Agency may have agreed to split, all the above are at taxpayer expense for the employee, the union, the Agency, anybody employed with one of the hearing Agencies and even the employee’s lawyer, in certain cases. In many cases, if the issue drags on long enough, the Agency has purged the reprimand from the employees record before the case as described above is over.
Who Benefits from All of This?
One might ask how the process described benefits anybody. Good question.
The union representative involved, if an Agency employee, is almost always entitled to official time for any meetings, preparation, filings, appearances, appeals or related activities thanks to thirty-five plus years of decisions by the FLRA.
Another beneficiary may be a private or union attorney (more about this later). The union may benefit since almost every Agency labor relations specialist will tell you that a grievance is usually accompanied with a dues withholding request from the employee joining the union. Shocking, huh?
Taking an Adverse Action, Specifically a Removal Based on Misconduct
The complexity of taking a removal action against a Federal employee is such that books have been written on the process. I’m going to give It short shrift no matter what in an article this size so keep that in mind those of you fond on picking at technicalities.
Unlike a reprimand, few hurdles exist to getting a removal action appealed to an arbitrator, the Board or EEOC and ultimately into the Federal courts. The lead Agency in dealing with removals has been the Board. For over thirty-five years it has created and revised (based on the world view of its majority) the burden an Agency must meet to sustain a removal case it hears. This has had a spinoff effect on arbitrators and EEOC as well, who add their layers of complexity to those laid down by the Board.
The current Board majority have in their resumes advocacy work for Federal unions or Federal employees. One might ask if that means they would make it easier or harder for an Agency to prevail in an action or make lawyering for appellants a lighter load. You can probably figure it out with very little help from me.
In any case, to prevail in a removal case before any of the bodies involved, an Agency must prove:
- All the procedural requirements involved in taking the action were followed to the letter
- The employee (in almost every case) had a history of misconduct addressed in prior progressively severe disciplinary actions
- The Agency manager proposing the action (yep, no matter what, two different managers must be involved, Oh, and they are very limited by Board case law in their ability to discuss it with each other) must be absolute in his/her specificity in the charges and specifications
- The employee was provided the opportunity to be represented by the union or other representative
- The employee was given time off, if in a duty status, to reply to the proposal
- The employee, absent proof, to the contrary got the exact same treatment as anyone else charged with the same misconduct (no opportunity for mischief here, you say?)
- Once the matter goes to the Agency deciding official, he/she must offer the opportunity for a written or in-person reply with representation
- The deciding official must not only show he/she considered the employee’s reply but that he/she considered all the following “Douglas” (from a Board decision) factors:
- The nature and seriousness of the offense, and its relation to the employee’s duties, position, and responsibilities, including whether the offense was intentional or technical or inadvertent, or was committed maliciously or for gain, or was frequently repeated;
- the employee’s job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position;
- the employee’s past disciplinary record;
- the employee’s past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability;
- the effect of the offense upon the employee’s ability to perform at a satisfactory level and its effect upon supervisors’ confidence in the employee’s work ability to perform assigned duties;
- consistency of the penalty with those imposed upon other employees for the same or similar offenses;
- consistency of the penalty with any applicable agency table of penalties;
- the notoriety of the offense or its impact upon the reputation of the agency;
- the clarity with which the employee was on notice of any rules that were violated in committing the offense, or had been warned about the conduct in question;
- the potential for the employee’s rehabilitation;
- mitigating circumstances surrounding the offense such as unusual job tensions, personality problems, mental impairment, harassment, or bad faith, malice or provocation on the part of others involved in the matter; and
- the adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others.
- Of course, mere consideration is not enough, the deciding official must explain which were considered relevant and why as well as how the deciding official applied them
- Finally (not really, I’m abbreviating here) the deciding official must state how the employee’s removal “Promotes the efficiency of the service” – the 1912 standard for removing employees from Federal service.
Who Pays, Who Benefits?
Again, all this is at taxpayer expense. The more complex the rules the more attorney advocates have the opportunity to get attorney fees for Agency missteps. Of course, everybody involved is on the clock for most, if not all of this.
What’s the Fix?
Fixers need to answer these questions:
- Just how much “due process” for Federal employees is needed?
- How many systems are needed to protect whatever “due process” is warranted?
- What is the proper balance between getting every picayune detail right and the cost to government?
- How does one set up a system that, unlike the current one, does not encourage frivolous and perpetual appeals?
- When the law passed, those of us in the business called it the full employment act for attorneys and it has proved to be just that. How does the government do fair without thousands and thousands of cases made progressively complex with lawyer involvement?
- Do we want a system which in comparison demonstrates that it is often easier to convict a criminal practically and procedurally than to fire a Federal employee?
I’ll follow up with an article offering specific suggestions on how to fix the craziness we’re doing now.
The above, as always are my thoughts and not the responsibility of anyone but me. It really is past time to create a fair system that considers the government’s operating needs not just those of employees, unions, and employee lawyers. It will take, for sure, courage to address the problems that exist.