The Supreme Court trusts Federal Agencies more than the Congress does. Despite loud and repeated calls from the Hill for greater accountability of Federal employees, the Congress itself could fix the problem by enacting a system identical to one that already holds Federal employees accountable and is fair, simple and not the province of tons of DC lawyers, union representatives or other bureaucracy lovers.
Currently, if a Federal worker has a security clearance or holds a sensitive position, an Agency may revoke the clearance or find the individual unable to continue to hold that position based on misconduct both on and off the job. There is no appeal beyond the Agency except that he/she was denied due process in the Agency decision process.
How the Current System Works
The security clearance is similar for all Agencies but the Navy has a training document that explains the system in detail. In essence, the Agency manager involved initiates the revocation by giving an employee a letter of intent and usually suspends access to the classified material.
The employee has an appeal right in the Agency to an organization that rules on the determination with a final appeal to an Agency appeals board. If removed, as long as the employee has been accorded due process as in the Navy process, there is no appeal outside the Agency.
The cases to read on this are Egan v. Navy and Berry v. Conyers.
Why Not Apply a Similar System Applying to All Federal Employees for Misconduct or Poor Performance?
Regarding security clearances and position sensitivity, the courts believe an Agency head is in the best position to determine whether employee behavior warrants a removal or other action.
So, let’s say a supervisor or manager initiates an action following the Agency’s and the Office of Personnel Management’s policies and regulation. The employee might then get a decision from a higher level official on the actions now appealable to the Merit Systems Protection Board, Equal Employment Opportunity Commission or an Arbitrator. The employee, if removed, suspended or demoted, may then appeal to a board established within the Agency and carrying the authority of the Agency Head. The board may decide to sustain, modify or reverse the action.
In any case, there is no further appeal unless the employee is able to prove he/she was not afforded the due process of the system described here or that the board members violated rules similar to those at Section 10 of the Federal Arbitration Act which states:
(a) In any of the following cases the United States court in and for the district wherein the award was made may make an order vacating the award upon the application of any party to the arbitration
(1) Where the award was procured by corruption, fraud, or undue means.
(2) Where there was evident partiality or corruption in the arbitrators, or either of them.
(3) Where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced.
(4) Where the arbitrators exceeded their powers, or so imperfectly executed them.
The Federal Arbitration Act seeks to keep out of the courts cases that are better determined by an arbiter whose decision is virtually unchallengeable except as provided in the act. I’m not advocating arbitration here, but a similar system where decision making is vested in an Agency head. All affirmative defenses, except perhaps whistleblower protection, would be covered.
Some might say there are Agencies too small for such an idea to work effectively. If so, those Agencies can combine their resources and use a joint board whose decision is reviewed by the Agency head.
Some also might say it’s putting the fox to watch the hen house, but what interest would an Agency head have in destroying morale by creating a rigged system at the level we’re talking about here? Each Agency already has an IG which could be tasked to periodically review the board’s decisions for statutory compliance and fairness.
In addition, some might say that the higher the level of the employee against whom an action is taken, the more likely cronyism is to occur. OK, set a grade level within an Agency in which the Agency head must send an employee appeal to a joint board or that of another Agency.
I’m proposing a government-wide system, applicable to all permanent employees regardless of appointment, excluding political appointees and probationers only. It is simple, fair and models a system already used government-wide and endorsed by the courts.
It’s Time for a Change
What I’m suggesting is fairer than what happens now to all involved. It would provide consistency on an Agency-wide basis, support due process and hold both employees and those taking action accountable to the organization for which they work.
One can probably be convicted of most felonies in a D.C. criminal court with less process and lawyering than accrues to a removal of a Federal employee in that same city, and it’s no different through the Federal government.
I do know one thing, and that is that there would be a huge lobbying block to oppose such a system by those that make their living defending employees with problems in government now. All of the employee advocates whether attorneys, union representatives or others who work the current system will not be happy at all. Oh, I forgot. Congress is jammed with lawyers, there goes this idea.
As always, the above represent my ideas and opinions and not those of FedSmith, or anyone else associated with me in any way.