Draining the Discipline Swamp

By William Wiley, December 5, 2016

Dear President-Elect Trump:

Hey, how’s it going? Getting settled into that commander-in-Chief-to-Be role? Having fun answering phone calls and sending out tweets 24/7? Ready to run the Executive Branch? Trust me; we here in the federal employment law community are just as excited as you must be by this prospect.

And here at little old FELTG, we stand ready to help you, in any way we can. We are All Civil Service / All the Time, and we just love to act all smart and give out advice, whether the advice is asked for, or not.

You might remember that last week, we dropped you a public note about how screwed up the current oversight functions are within our beloved civil service. There are at least seven avenues of review if an employee claims to have been mistreated by his employing agency (eight if you count our previous typo). Their jurisdictions may or may not overlap, depending on exactly the claim being made, their procedures are all different, and they each have their own turf to defend. We suggested oh-so-delicately that you add fixing this quagmire to your to-do list once you take the civil service oath.

Interesting Fact: The very first law passed by Congress, Law Number One as they say over at the National Achieves, was that those of us lucky enough to be chosen to work for the United States government must swear allegiance to it. That oath you’ll be taking on January 20 is the very same oath that every civil servant has ever taken. Welcome to the club.

In response to our article last week about the oversight mess you’re inheriting, we received figuratively thousands of demands and pleas that we provide the answer to this mess. It’s one thing to point out a problem; it’s a higher calling to propose a solution. Never one to duck a higher calling, here we go with the FELTG Fix for the Problem of firing a bad federal employee.

Stay with us here; this gets pretty darned deep.

The Root of the Problem:  A foundational component of our civil service is that once an employee completes her probationary period and reaches a career status, she is vested in her position with the government. The courts, including the U.S. Supreme Court, have historically acknowledged that a career federal employee has a “property interest” in continued employment.

In our great country, an individual retains his property until it is either taken from him or he disposes of it himself (as a gift or as a sale). A taking occurs when someone breaks into your home and removes that big flat screen TV from your Man Cave wall. The more civil approach to a taking is when one person sues another person, demanding property ($) to right some wrong. Separately, the state can take away a citizen’s property by demanding the payment of a fine such as a parking ticket. Unlike an illegal taking (like a burglary), legal takings are adversarial and fought out in court, using controlling law, evidence, and argument before a neutral fact finder. This is known as the “adversarial” process; a process whereby property is taken away from someone in a fair and just manner.

When a federal agency fires one of its career employees, it has taken away that employee’s property. Therefore, to do it legally, the agency is required to subject itself to an “adversarial” process, seven of which we noted in last week’s article. In those processes, the agency has the burden of proving that the employee is at fault, with the employee having the commensurate right to argue that he is faultless. In a fault-based system like this, we need investigators, arbitrators, judges, boards, commissions, authorities, lots of time and money, and lots and lots of lawyers.

Not only is the adversarial world expensive and time consuming, it doesn’t always produce the right result. The side that happens to have the most money or best advocate may win an appeal, even though the other side should have won. Sometimes the government will pay money to “settle” a case, even though it is in the right, but doesn’t want to dedicate the adversarial resources to prove it. After 40 years of the current civil service law, agency removals are set aside on appeal at a rate of one-in four or one-in-five. That’s a dismal success rate when you’re talking about fairness to an employee and government money that is being wasted.

The Fix:  About 150 years ago, Germany ran into a similar problem in the workplace. Individuals were getting injured at work without any assurance that their injuries would be compensated. If the injured individual felt that the employer was at fault, he had to hire a lawyer, bring suit, and then he may or may not have been successful in receiving damages. Any damages awarded, of course, had to be shared with the successful attorney who represented the injured worker rather than go to the worker who no doubt needed the money more. Individuals who could not afford a lawyer became a drain on society if they could no longer work, often requiring years of charity to survive.

In the late 1800s, Count Otto von Bismarck came up with an alternative. He pressed through a law that characterized on-the-job injuries as “no fault” events, thereby removing them from the adversarial world of lawsuits. Today, in our country we call programs like his “workers’ compensation programs.” You get injured on the job, you get compensated without having to get all adversarial and prove fault.

Along those same lines of a “no-fault” process, our country (as do most all western countries) maintains the right of “eminent domain.” If the fed needs to build a road through your farm, it gets to take it if it compensates you for the property. You haven’t done anything wrong; there’s no fault when your private property is expropriated by the government for the public good. It’s just our legal way of acknowledging that Mr. Spock was onto something when he said, “The needs of the many outweigh the needs of the few.” The Wrath of Khan (1982). You have been relieved of your property in a non-adversarial manner: a sale, albeit a forced sale.

And, thus, our recommended fix. Do away with the adversarial nature of a firing a civil servant and convert it to an eminent-domain-like taking, based on the following precepts:

• Every year of acceptable service that an employee completes entitles him to a year of ownership of his position.
• Individuals who work for the government 20 years have 20 years of entitlement. Therefore, even if she messes up in year 21 and deserves to be fired, she has earned value in the 20 years she did good work.
• An agency should be able to “buy back” a job from an employee. Just like the farmer required to give up (for pay) the south 40 for construction of a freeway, develop a formula for valuing a job held by a career employee – based on salary and length of service – and allow the government to remove the employee by paying the employee whatever the value is for his job. No need to prove fault. No reason to fight it out in an adversarial nature. The job is worth this much money. Here’s a check. The agency can now use the position for the public good by hiring a replacement.

And now I hear the nay-sayers:

“But Bill, won’t that cost a lot of money?” No, not compared to keeping a bad employee on the payroll through retirement or devoting resources to defend a removal in a risky adversarial forum.

“But don’t we need to ‘punish’ somebody?” No, we learned from Count von Bismarck’s approach that punishment is not necessary to achieve a desirable end, even if fault is somehow involved.

“But won’t this radically change what the civil service is all about?” No, I won’t give you “radical.” However, I’m OK with characterizing this no-fault approach as being a “fundamental” change.

More importantly, though, I think that it is a pragmatic change, a change designed to protect an employee’s rights to an encumbered position by setting a price tag on those rights while simultaneously allowing an agency the flexibility to simply and quickly manage the darned federal workforce. If we are to listen to the voices of many of our elected officials (and those who tried to become elected, but failed), something needs to be done about this quagmire, this swamp.  The civil service is seen by some as a stagnant pool of inefficient workers who cannot be fired.  While we strongly disagree with that view here at FELTG, we have to accept that this is the world in which we live. We need to take steps to deal with it instead of just saying that they are all wrong, we are all right, and things should stay the same as they always have been.

The current oversight of the civil service removal process is adversarial, expensive, and time consuming. Converting to a no-fault buy-back process protects the employee’s rights to the position he has earned while allowing for the prompt secure removal of non-productive individuals. Yes, this approach changes in some ways a fundamental structure of our civil service system.

But maybe a fundamental structural change is exactly what is needed. Wiley@FELTG.com