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What in the World is Going on at MSPB?

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By William Wiley, March 14, 2018

You have to understand the role and the operation of the US Merit Systems Protection Board plays in our country to fully appreciate what is happening there now. You experienced readers will have to forgive us for some basics before we can get to the meat:

  • The good citizens of our great country are served by its government. The government is made up of 2+ million civil servants who, to varying degrees, do the best they can to make government work.
  • When a federal employee breaks bad (unacceptable performance or serious misconduct), his supervisory chain has the right to fire him. Because he is protected by civil service laws from unfair treatment by his supervisors, that (now former) employee has the right to defend himself in an appeal to MSPB.
  • Usually, there are two levels of review at MSPB. First, a Board administrative judge conducts a hearing, then issues a decision based on the evidence and argument as to whether the appellant stays fired or gets his job back. Next, that judge’s decision can be reviewed, affirmed, or set aside by the three members who make up the Board itself.
  • The Board’s members are Presidential appointees, confirmed by the Senate, to serve specific seven-year terms. The terms are independent, and their expiration dates overlap. Once confirmed by the Senate to be a member, the President has the independent authority to designate a member as either the Chairman, Vice Chairman, or simply Member.
  • The most recent term expiration occurred a couple of weeks ago, on March 1, 2018. That term currently is occupied by Mark Robbins, an Obama appointee who continued to serve even after the change in administrations. Prior to the expiration of that term, Mr. Robbins effectively could not be replaced by the President. Once that term expired earlier this month, Mr. Robbins could “hold-over” and continue to serve as a Board member for another year. However, the President would now be free to replace him at any time after March 1.

We have had two vacancies at the Board since January 2017. With only one remaining member (Mr. Robbins), MSPB lacked a quorum and could not issue final orders regarding the appeals of judges’ decisions. As of today, there are about 875 appeals of judges’ decisions that are backlogged at the Board due to this year-long lack of a quorum. Were the White House to nominate just one more member to the Board, along with the 800+ internal votes already cast by Mr. Robbins, that new member could also vote on a case, affirming or setting aside a judge’s decision, thereby releasing that appeal from the case backlog.

With that as background, we serious Board watchers – and others who are concerned about an effective civil service – were delighted to see that last week the President announced the nomination of a new Board member, Andrew Maunz, an individual who is a solid career attorney with exceptionally high credentials, to become a final adjudicator of removals from the civil service. FINALLY, after all these months, we expected we could begin to see things start to move at the Board. Appellants would begin to find out if they were to stay fired or were to get their jobs back. Back pay would stop accruing against agencies who might be in a position of losing appeals to the Board. Whether we ultimately were to agree or disagree with the decisions that we expected to see begin to be issued, at least the backlog would start to be reduced, and justice finally would be done.

Not only were we impressed that the White House had selected a highly qualified and experienced individual to serve as a new Board member, the President’s respect for the math was also impressive. You see, had the President at the same time nominated TWO new members instead of one, that would have doubled the time necessary for cases to start being voted out and the backlog thereby reduced. It should be relatively obvious that two people take twice as long to consider and adjudicate an appeal as would one. In addition, three members are more likely to disagree than are two, thereby increasing the amount of time necessary to resolve those disagreements. Yes, many of us were doubly blown away by the move the White House was making to replenish the Board.

And then the fine print of the White House announcement started to seep in.

Thanks to the help of several astute readers of our newsletter, we now see that new member nominee Maunz had been identified to take over the term currently occupied by Mr. Robbins – the term that expired on March 1, 2018, set to expire March 1, 2025. With his confirmation, Mr. Maunz will become the Vice Chairman and displace Mr. Robbins, thereby voiding the internal votes Mr. Robbins has been casting since becoming the sole remaining member of the Board on January 6, 2017. Therefore, instead of us joyfully celebrating that soon we can expect to see final orders flying out of the Board’s backlog with two members voting, we started to believe that we would continue to have a one-member, no-quorum Board.

And THEN, late last week, we got another announcement by the President of an intent to nominate a second individual to the Board. If confirmed, Dennis Dean Kirk will become the Board’s new Chairman, taking over the vacancy left when the Board’s former chairman quit before her term expired in early 2017. That term is set to expire March 1, 2023. Fortunately for us all, Mr. Kirk has federal experience as an attorney and has previously represented before the Board while in private practice. Past presidents have not seen prior federal employment experience as a necessary prerequisite to be a Board member.

Interesting observations about where we are with all of this:

  1. Historically, the designations of Chairman and Vice Chairman have been awarded by the President to the two Board members who are members of his party. As the Board cannot be composed of three members from the same political party, the betting money is that the remaining Member’s position will be filled by a Democrat appointed by President Trump (although an Independent or some other non-Republican would serve just as well).
  2. The President has appointed the new Chairman to a term expiring in 2023. He had the option of appointing him to the term ending in 2025. One might think the President would have put the Board’s chief executive officer into the position with the longer term for the sake of continuity. But, one would be wrong.
  3. While appointments could have been made to the Board that allowed Mr. Robbins to continue to hold over and his previously-cast internal votes to count, the White House has selected terms to be filled that displace Mr. Robbins and cancels out all the work he has been doing since January 2017. Whether this was an intentional decision or an oversight, the effect is the same: soon we can expect to have a bevy of new members at MSPB starting to work away at 875+ cases with no voting assistance from any former members.

Gentlemen, on behalf of our little training company, we welcome you to the battle, and wish you the best of luck in helping the civil service protections once again become a reality. Just try not to think about how many pages of reading await you when you have to adjudicate 875 appeals, just to get started in your new job. Wiley@FELTG.com

It Can Be Bad; It Can Be Good: Part II

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By William Wiley, March 14, 2018

Several weeks ago, we distributed an article explaining how an employee engaged in misconduct could be handled well, compared to a series of missteps that amounted to doing the wrong things. In response, we got an outpouring of requests (2) that we do the same bad-thing/good-thing comparisons for an employee who has not a misconduct problem, but rather is a poor performer. There are two different laws that come into play depending on the type of problem employee we have. For purposes of the comparison, we are relying on 5 USC Chapter 43 and 5 CFR Part 432 for the performance action.

So here’s our list of bad-choice/good-choice options. On the left, you’ll see a list of actions we have seen historically that supervisors think they have to take when faced with a poor performer. On the right, you’ll see our FELTG approach that cuts right to the chase and empowers the supervisor to respond much more efficiently when an employee is a non-performer:

Supervisor provides the employee a performance plan at the beginning of an appraisal year or when the employee enters a new position. Absolutely essential. We cannot use the unacceptable performance procedures to hold the employee accountable unless there is a current performance plan in place.
Training Not required. Employees are hired with the expectation that they can do their jobs. However, to be safe we do allow the employee around 30-45 days to get used to any new performance standards.
Counseling    Not required.
Written Warning        Not required and generally a bad idea because the employee can claim reprisal or discrimination.
Letter of Expectation Not required. Causes the process to be drawn out for no benefit.
Reprimand or Suspension No. These are tools for dealing with misconduct, not poor performance. They should never be used for poor performance under 5 USC Chapter 43.
Initiation of an Opportunity to Demonstrate Acceptable Performance (aka, a PIP) Absolutely correct. Once the employee has been on a plan for several weeks, and the supervisor determines (not proves) that performance is at the Unsatisfactory level on just one critical element, an opportunity period should be initiated.
The Opportunity Period is Set for 60-120 Days Never! These periods should be 30 days.
The employee files a traditional race/sex/age discrimination complaint, and the agency requires the supervisor to produce evidence that the initiation of the opportunity period was warranted. Wrong. EEOC has held for years that the implementation of an opportunity period is not an adverse employment action, and thereby it cannot be the basis of a discrete-act EEO complaint.
The supervisor leaves the employee alone during the opportunity period to give him an opportunity to perform. Wrong. The supervisor meets with the employee periodically during the 30-day period and gives the employee assistance by providing critical feedback.
The supervisor grants the employee’s annual leave request, thereby causing the period to be extended. Wrong. Any annual leave or LWOP request should be denied or canceled if previously approved. In comparison, sick leave must be granted if the employee is sick. The PIP period can be extended to make up for any sick leave used.
Because the employee presents evidence that he’s disabled and his disability caused the poor performance, the supervisor cancels the opportunity period. Wrong. Disability accommodation is relevant for the future, not the past. The correct approach is to pause the opportunity period, engage in a discussion with the employee to determine whether there’s an accommodation that will allow him to do his job, then provide the accommodation and re-start the demonstration period.
Because the employee’s medical documentation establishes that he cannot perform some essential function, the supervisor removes the function. Wrong. The supervisor does not need to remove the essential function. The supervisor now needs to terminate the employee for Medical Inability to Perform, if accommodation and reassignment are not possible.
If the employee performs successfully during the opportunity period, he’s off the hook. Wrong. The employee must maintain acceptable performance for the next 11 months after completion of the 30-day period. If the employee again becomes unacceptable, immediate removal is warranted without another opportunity period.
If the employee performs unsuccessfully, the supervisor gives the employee written notice that he has failed the demonstration period, and that a proposed removal will be issued soon. This is the stupidest thing I have ever heard, yet I know some practitioners who do this. If the demonstration period is failed, removal should be proposed within five days.
If the employee performs unsuccessfully, the supervisor proposes a removal or demotion. The much better strategy is to propose removal. If there is a demotion position available, the supervisor should offer it to the employee as a voluntary alternative to removal and get it in writing. That way, the demotion cannot be challenged on appeal.
Removal will be proposed only if there are boxes and boxes of documentation of non-performance during the opportunity period. Wrong. Removal can be proposed even if there is just a bit more than a speck of proof; a little more than a jot or a grain. This is called “substantial evidence” and it’s all that’s required to remove a poor performer.

 

In summary, trained practitioners know how to deal with poor performers:

  1. Once the employee has demonstrated unacceptable performance on a critical element, the supervisor initiates an opportunity period to allow the employee to demonstrate whether he can perform.
  2. During the 30-day demonstration period, the supervisor provides the employee specific information as to how he is performing relative to the failed critical element. The supervisor collects evidence of unacceptable performance that is occurring during the period.
  3. The HR advisor or attorney works with the supervisor throughout the demonstration period to make sure that all the necessary evidence is being collected, and that the supervisor is aware of what he will be issuing once the period is completed.
  4. If the demonstration period is failed, the supervisor issues a proposed removal based on evidence a bit more than a scintilla. If the demonstration period is completed successfully, the supervisor issues a warning to the employee that his removal will be proposed immediately if his performance again becomes unacceptable during the remainder of the year.

Yes, appeals, grievances, complaints, and ULPs happen, but that’s the price we pay for a protected civil service. If you know what you’re doing, you can keep them down to a minimum, and always win them. As we’ve been screaming at the tops of our little FELTG-voices for nearly 20 years, it’s not the system that is a problem as much as it is a lack of people who understand the system.

Come to our training. Learn the program. Be a Performance Management Superstar. We love this stuff. Wiley@FELTG.com

An Act of Smiling Insubordination

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By William Wiley, March 6, 2018

We get such good questions here at FELTG (because our readers are so smart, hardworking, and good looking). This one brought a big old smile to our faces:

Dear FELTG-Funny-People,

I’ve mentioned some of the topics covered in your newsletter to my boss, specifically the one about ordering an employee to smile and participate in meetings.  His perspective is that this would never work “in the real world.”  My perspective on his comment is that our agency solicitors wouldn’t support such an order or recommendation for removal.

Sad in Seattle

And our ever-thoughtful FELTG response:

Dear Sad-

Thank you for your nice note. It’s very kind of you to take the time to comment on one of our silly articles.

As for whether MSPB would uphold a removal for a failure to participate in meetings or smile, our job is to say what MSPB has done in the past so that we can predict what we can do in the future. And they have never said that this sort of misconduct (insubordination) would not support a removal. Our job is not to have an opinion on what should be done, but instead what can be done. That is my real world, and with all due respect, that is the real world of your supervisor as well as that of your solicitor.

We don’t need to guess at what MSPB would do. We just have to look and see what they’ve done in the past. When we do that, we find ZERO cases in which the Board has said that an employee is free to disregard a job-related order from a supervisor. In 40 years. Remember, I was the Chief Counsel to the Chairman at MSPB through most of the ’90s. I know this stuff. It is easy to imagine a job in which attending meetings would be job-related. Even smiling can be a job requirement; e.g., a supervisor might want employees who contact the public to smile for the benefit of presenting a better image of the agency. Your boss and your solicitor may not know this, but that doesn’t make them correct. Instead, it makes them uninformed.

Best of luck.

This is an important matter, not so much because we all want more smiling civil servants, but because it highlights a bedrock principle of the federal workplace. Supervisors get to decide what work is going to get done. Not some judge or political appointee on some board; the decision goes to front line supervisors. There are three and only three requirements for a supervisor’s order to be enforceable through discipline:

  1. There must be a nexus (relationship) between the order and the work of the agency,
  2. The order itself must not violate a law or require the employee to violate a law, and
  3. The order must be do-able (attainable).

Let’s say that you supervise a public contact Federal employee, perhaps a hypothetical screener for TSA. Your Customer Service surveys show that many members of the public who are screened by your employees find them to be gruff, uncaring, and rude (this is all hypothetical, of course). You decide that ordering your employees to smile might reduce the public’s negative perception of your crew. If you decide to order your employees to smile:

  1. There is a nexus between you order and the work of the agency,
  2. There is no law against smiling, and
  3. It is possible for employees to smile.

That’s all it takes. If Mr. Grumpy intentionally refuses your order for whatever reasons, you can reprimand him for insubordination. If he commits a second offense, you can suspend him, and if he commits another offense after he serves the suspension, you have the authority to consider firing him. You need not tolerate an insubordinate employee indefinitely.

“But, Bill. Won’t a judge overturn the removal on appeal?” Nope. The Board has long found fault with judges who insert themselves into the decision process regarding what work should be done. Supervisors decide what work should be done, enforceable through removal, if necessary. Even if a judge would never order her employees to smile and thinks it silly that any federal supervisor would give a smile-order, the judge has no authority to set aside the order. All she can do is review the order against the above three criteria, evaluate the penalty where she must give heavy weight to the repetitive intentional nature of the insubordination, and uphold the removal. If she did not, she would be affirming the power of federal employees to refuse to obey a supervisor’s order, and that’s just not going to happen. She cannot substitute her judgment relative to the wisdom of the order for that of the supervisor.

Tell employees what you want them to do, even if it’s something seemingly as minor as smiling. Apply progressive discipline to them when they don’t. Remove them if they become a three-striker. People can’t be forced to do what their supervisor tells them to do, but if they don’t, the supervisor has the authority to remove them from the civil service.

Remember that the next time your boss tells you to, “Have a nice day.” Better smile when he says that. Wiley@FELTG.com

It Can Be Bad; It Can Be Good

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By William Wiley, February 27, 2018

We love our questioners. Recently, we got an inquiry regarding an article written by one of our favorite authors. Here’s our response:

Dear Employment Law Gurus,

I read this article from Government Executive this morning. I would love to know your opinion of the premise of the article, basically it is too hard to fire federal employees, and the scenario the author provides.

http://www.govexec.com/excellence/management-matters/2018/02/low-rate-firing-government-employees-not-positive-sign/145763/?oref=govexec_today_nl

Thank you.

And here’s our guru-like response:

Thanks for your query. These are exactly the sorts of misunderstandings we love to address.

The author has expanded the scenario to make a valid point. As we have taught in our classes for years and provide as part of our consulting services, he is implementing, as is typical in many agencies, more actions than required by law. An FELTG-Certified practitioner would never do these things.

His list and our alternative:

Employee’s supervisor looks the other way First mistake. We teach supervisors to act immediately upon seeing misconduct.

 
Oral counseling Not required. Lehnerd v. OPM, 55 MSPR 170 (1992)

 
Written counseling   Not required and generally a bad idea because the employee will claim reprisal.

 
Written admonishment        Not required; potential reprisal claim same as above.

 
Reprimand Yes! Finally, the supervisor does what we teach should be done on day one.

 
Short suspension Can do. However, we teach to bargain with the employee to accept a Reprimand in Lieu of Suspension. No grievance that way.

 
15-day suspension Never! Why do something the employee can appeal to MSPB? Besides, unnecessary and of unproven value.

 
Proposed removal Yes! Should have been done after the Reprimand in Lieu of Suspension.

 
Injury after removal proposed Not in the FELTG world. We put the employee on Notice Leave so he is not in the workplace. No workers’ comp 45 days there.

 
Demands to be retrained     No entitlement to be retrained.

 
Reassigned Should have issued the decision to remove that was proposed earlier.

 

I know and respect this author. His scenario does indeed happen way too often. However, trained individuals know how keep this from happening:

  1. Reprimand,
  2. Reprimand in Lieu of Suspension,
  3. Removal.

Yes, appeals, grievances, complaints, and ULPs happen, but that’s the price we pay for a protected civil service. If you know what you’re doing, you can keep them down to a minimum, and always win them. As we’ve been screaming at the tops of our little FELTG-voices for nearly 20 years, it’s not the system as much as it is a lack of people who understand the system that’s the problem.

Come to our training. Learn the program. Be a Systems Superstar. We love this stuff. Wiley@FELTG.com

 

Another Congressional Tiny Little Foray into the World of Civil Service Law

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By William Wiley, February 20, 2018

Each year, the National Defense Authorization Act turns out to be a great piece of legislation into which members of Congress can stick things that have nothing to do with the nation’s defense. The Act for fiscal year 2018, HR 2810-335, is no exception. Dig through many pages in the bill of this and that, and you’ll find the following tidbit:

Sec. 1097(b)(5), INFORMATION ON APPEAL RIGHTS. —

(A) IN GENERAL. —Any notice provided to an employee under section 7503(b)(1), section 7513(b)(1), or section 7543(b)(1) of title 5, United States Code, shall include detailed information with respect to—

i. The right of the employee to appeal an action brought under the applicable section;

ii. The forums in which the employee may file an appeal described in clause (i); and

iii. Any limitations on the rights of the employee that would apply because of the forum in which the employee decides to file an appeal.

(B) DEVELOPMENT OF INFORMATION. —The information described in subparagraph (A) shall be developed by the Director of the Office of Personnel Management, in consultation with the Special Counsel, the Merit Systems Protection Board, and the Equal Employment Opportunity Commission.

Context

To appreciate the relevance of this language, we need to know a couple of things:

Adverse Actions: To suspend, demote, or fire a Title V career federal employee, most agencies take what is known as an adverse action, 5 USC Chapter 75. Agencies must issue two separate documents to make an adverse action happen:

  • A proposal Notice that tells the employee why the action is being proposed, and explains the employee’s rights to defend himself, and
  • A Decision memo that takes into consideration the employee’s defense of himself, and notifies the employee of the outcome of the proposal; g., removal, demotion, suspension, or nothing.

Rights Notification:  Since the beginning of time (OK, maybe it was just since 1979), agencies have been required to include in the Decision memo an explanation of the employee’s rights to challenge the agency’s final action through appeal to MSPB. Historically, agencies have also included an explanation of the employee’s alternative rights to file a grievance under a collective bargaining agreement, a discrimination complaint to EEOC, and sometimes an explanation of the US Office of Special Counsel’s jurisdiction to consider claims of whistleblower reprisal.

About five years ago, MSPB decided that the various rights notifications used by different agencies were not uniformly informing to the employee of all the alternatives available to challenge the adverse action, and the implication of selecting one venue over the other. Therefore, by regulation, the Board mandated that agencies must provide a complete description of the various redress alternatives when issuing a decision in an adverse action appealable to MSPB.

However, for reasons unimaginable to the common mind, the Board did not say exactly what language should be used for the rights notification. That left agencies floundering around guessing what should be said in the rights notification to make the Board happy, and the Board reviewing those rights notifications judging some to be adequate and others not.

Here at good old FELTG, we did the best we could to sort all that out. As soon as the regulatory requirement was mandated, we offered draft language that we guessed the Board would accept. A few months later, we had to tweak that language because of an MSPB decision that pointed out the need for greater specificity of notice. Still, even with the second tweaked draft, we weren’t really sure that the MSPB was being appeased or whether it just had not gotten around to finding fault with what we had recommended. Lesser agencies who do not abide by our FELTG suggestions continued down whatever language rabbit hole they thought to be the better path. Quite frankly, we were all running backwards in the dark because of the lack of distinct and specific instruction.

Comes Now the NDFAA for Fiscal Year 2018:  Amazingly, somebody on Capitol Hill saw how foolish this was, and interjected the language you see above into a passing piece of legislation. No offense intended here, but I am awe-struck that someone up there appreciates the difficulty that this lack of guidance causes. Talk about civil service minutiae. Hats off to whoever saw the problem, and thanks for trying to fix a dilemma that should never have occurred.

Unfortunately, the law misses the point of a rights notification. An employee needs to know her rights to challenge an adverse action after the decision has been made to implement the action; e.g., in the Decision letter. The statutory language above requires that the rights notification be included in the Notice proposal. So now what will happen is that the poor employee likely will be confused and start filing appeals before the agency has made a decision as to whether an adverse action will be implemented at all, and if so, what it will be. If that happens, poor overworked MSPB will have to dismiss all those pre-decisional appeals as premature, and the confused employee will have to get good advice to know to refile once the final decision is issued. Groan.

MSPB, why in tarnation didn’t you just tell us what language to use as a rights notification in the first place? Why put it on us simpletons to guess at what you wanted? OPM, when you saw that MSPB wasn’t going to be helpful, why didn’t you have one of your senior people Uber over to M Street NW and talk with someone at the Board about a coordinated issuance of acceptable language? This is staff stuff. This is what staffs do. No big decision-making; that’s left to the politicals. Just normal people saying to normal people, “Hey, we got a procedural problem here. Can you help?” Geez, see what happens when you leave it up to Congress to fix something we should have fixed ourselves? Good try; just missed.

We’re all in this together: MSPB, OPM, EEOC, OSC, the other civil service movers and shakers; maybe even old FELTG, if you’ll allow us a guest pass. The goal is to make government work smoothly and fairly. Congress is going to continue to micromanage us until we learn to manage ourselves. This is not the best way to make government work well. Wiley@FELTG.com

How to Write a Robust Critical Element

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By William Wiley, February 14, 2018

Few supervisory responsibilities are less clear than how to write a good critical element. Goodness knows it’s not for lack of “guidance.” The performance management world is full of important-sounding words and concepts: maximizing S.M.A.R.T. performance standards, GEPRA cascading goals, quality/quantity/timeliness. And then we have mandatory generic standards written by somebody in HQ who doesn’t know diddly about how things are done out here in the field and don’t really say anything worth saying: “empowering,” “transparency,” “learning-based approach,” “bottom-up buy-in,” “cascading goals,” and this season’s favorite useless phrase: “promoting engagement.” Aauugghh.

If you’re like most experienced Federal supervisors, you’ve probably come to the conclusion that this performance management stuff is just a bunch of B.S. dreamed up by some overly-intelligent Human Resources specialists to keep us worker bees busy. It all may sound good and worthwhile, but as a practical matter, it does you little good when it comes to actually managing employee productivity and getting the job of government done.

Well, we agree. To a point.

First, let’s start with the law. Whether we think that performance appraisal is worth a bucket of warm spit or not, we have to do it. The Civil Service Reform Act of 1978 mandated it throughout government, and there is little likelihood that Congress will be changing that aspect of the law any time soon.

Next, we come to the minimum you have to do. As a Federal supervisor, you are required to create at least one critical element (CE) in each performance plan you write. For each CE, you must create a performance standard by which you will rate the employee either Unacceptable or higher using one or more levels of rating above that. Drafting a usable CE and its standard is your primary responsibility because nothing else works in a performance management program without that.

And there’s the rub. I don’t know about you, but for every good CE I have seen in my career, I’ve seen a hundred that were miserably bad. Even with all those pages and pages of guidance put out by OPM and your own agency, nailing an effective CE is just about the hardest thing a supervisor has to draft each year.

Well, you’re in luck. Here at FELTG, we have devised a method for writing a power-packed, customized CE for every employee in government. It combines a fair amount of judgment with some hard lines in the sand for accountability. We can hardly wait to tell you about the FELTG-Method©, but first, you need to appreciate our bias:

Performance appraisal doesn’t work.

What? How can that be? Would Congress and OPM require federal agencies to spend millions of hours doing something that has not been proven to be an effective management tool? Yes, they would. As the lawyers say when something speaks for itself, res ips. The sad reality is that while annual performance ratings for employees sound like a good idea and are embedded in many organizations, you’ll be hard-pressed to find any academic research that finds that they are worth the effort. In fact, what you’ll find instead are studies that say that annual performance appraisals act to de-incentivize good performance. So, when we say we have a great way to write a CE, we’re not saying that because it’s a magic bullet to fix a non-functional performance appraisal program.

Instead, what we’ve done is come up with a terrific way to write a CE for the purpose for which they indeed are useful: to draw a line in the sand for employees either to keep their jobs or get fired. If you want something that helps you differentiate between Exceptional, Superior, Exceeds Expectations, Outstanding, or any of the other slices of acceptable performance, you’ll need to look elsewhere. However, if you want a CE that you can use easily to make it clear to the employee what she has to do to keep her job, then this approach is for you.

Now that you have the background, look for the other two articles in this edition of the FELTG Newsletter and learn the secrets of a super-duper CE. Once you’ve mastered the FELTG-Method© trick, promise us you’ll use your new powers only for good and not evil. Wiley@FELTG.com

Surprise: We Start with the Position Description!

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By William Wiley, February 14, 2018

When we think about writing a performance plan, we don’t usually start with the employee’s position description. We read goals and objectives passed down to us from higher up, often from people with important ideas and responsibilities, but have little to do with front line performance and accountability. For example, the US Office of Special Counsel just got a law passed that says that every federal supervisor has to have a CE that measures how much they support the employee’s right to blow the whistle. The well-intended folks working on protecting employees from civil rights discrimination sometimes require a “diversity” CE. By the time we deal with special interest groups and generic CEs that say nothing, there’s precious little room left for CEs that are customized to the employee and the work the employee needs to perform.

That’s why we need to get to the heart of the employee’s job as quickly and efficiently as possible. And the employee’s job starts with the PD. So, get that document onto your computer, preferably in Word or editable PDF. Be sure its accurate or this won’t work. If it’s not accurate, stop right now and make it accurate. Your agency’s classification office will be glad you did.

Step 1. Using the Position Description, list all significant tasks required to perform in the position.

This is easy if you know how to copy and paste. The Introductory section of a PD lists all the tasks that you expect the employee to perform; e.g., “Files all incoming correspondence,” “Plans and manages the regional XYZ Program,” “Serves as the agency’s contact point with community partners,” etc. Go through the first section and perhaps the Knowledge section of the PD sentence by sentence. If the sentence says nothing of importance and does not describe a task, skip it. If it does describe a task, but not an important one, skip that as well.

One of the good-news-secrets of a performance-based removal is that you will not have to defend your characterization of a task as important or not. If you say that it’s important, it is. A judge will not go behind that decision and ask you to prove it or to otherwise justify your judgment.

When you come to a task that you deem to be important, using your word processing program, select the sentence with your little mouse, copy the sentence out of the PD document, then paste it into a separate document. Continue through the PD, copying and pasting, putting each new task on a separate line in the new document. When you finish, you will have a list of 10-50 important tasks you expect the employee to perform in that position. Using a sample PD from one of our favorite FELTG clients, your list should look something like this:

  1. Provides access, as appropriate, to offshore energy and marine mineral resources.
  2. Oversees the environmentally sound development of these resources.
  3. Coordinates the review and analysis of offshore energy and marine mineral lease proposals.
  4. Manages the Financial Accountability and Risk Management Program.
  5. Administers lease adjudication and management functions.
  6. Conducts environmental reviews, analyses, and consultations for proposed activities.
  7. Etc.

Option:  Legally, you can use the entire list to develop a single CE. However, in your judgment, maybe some of the tasks group well with certain other tasks, and for whatever reasons, you would like to have more than one CE. If so, copy and paste the tasks from the overall list derived from the PD into whatever groupings seem to make the most sense to you. For example, maybe some of the tasks are more administrative and others are more technical. Therefore, you might choose to have two CEs, one for each grouping. Here, we’ll deal with just a single CE, for simplicity.

Step 2. Dig out your agency’s handy-dandy appraisal form, the one you’re required to use to develop the employee’s annual Performance Plan.

Find a place on the form where you are allowed to create a CE. Give your CE a nice general name; something like “Technical Expectations” should work. Depending on your agency, you may be required to develop from two to five performance standards, one for each rating level in your agency’s performance policy. Again, for the sake of simplicity, let’s say that you are required to have three rating levels: Outstanding, Successful, and Unacceptable.

Go to the Successful level and begin to define the CE as follows: “Performs all of the following tasks within established time limits, consistent with accepted practices in the field, and free of any errors in the final product.” Below this introductory characterization of your expectation, cut and paste the task list you developed from the PD.

Critical Element No. X: Technical Expectations

Successful – Performs all of the following tasks within established time limits, consistent with accepted practices in the field, and free of any errors in the final product.

  1. Provides access, as appropriate, to offshore energy and marine mineral resources.
  2. Oversees the environmentally sound development of these resources.
  3. Coordinates the review and analysis of offshore energy and marine mineral lease proposals.
  4. Manages the Financial Accountability and-Risk Management (FARM) Program.
  5. Administers lease adjudication and management functions.
  6. Conducts environmental reviews, analyses, and consultations for proposed activities.

“But, Bill, there’s a lot of subjectivity here. Aren’t employees entitled to know our specific expectations?” Yes, Virginia, they are. And we provide that subjectivity through the day-to-day feedback we provide employees as their supervisors. If we decide we must place the employee on a PIP, we will give this enlightening feedback through formal feedback sessions set up and documented weekly during the PIP. The language here is good enough to get the performance year rolling and can be built upon as necessary as the year develops.

Step 3. Define the other two levels of performance.

Outstanding – Performs all tasks as identified for the Fully Successful level, and in addition exhibits an overall degree of professionalism above that expected for the Fully Successful level.

Unacceptable – Performs any task in a manner inconsistent with the expectation set for the Fully Successful level, failing to perform one or more tasks at the Successful level.

There you have it. Room to rate above fully successful if you think that’s necessary. A bright line in the sand if you PIP the employee. Remember, you don’t have to prove that your standard is particularly reasonable, only that it was attainable and that you resolved any ambiguity in the standard by PIP counseling. Given that the level of proof necessary to uphold a performance removal is only substantial (more than a scintilla, but less than the weight of the evidence), you will not have a problem on appeal justifying a removal using this task standard. Now, get out there and hold somebody accountable. Wiley@FELTG.com

But, What if I Want to Go Performance-Rating Crazy?

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By William Wiley, February 14, 2018

Let’s say that you’ve drunk the Kool-Aid and think that there just must be more than this to holding employees accountable for performance. You want not three levels of ratings, but five. Maybe some of your important tasks are more important than others. What if you’re willing to be more forgiving of an employee, rather than requiring that he perform all the tasks in his position before you will fire him? Can you still use the FELTG Method©?

Sure, you can. You just have to do a little creative tweaking (not “creative twerking”; Deb always corrects me on that one).

More Than Three Levels of Rating.

Let’s say that your agency requires five levels of rating:  Outstanding, Exceeds Successful, Successful, Minimally Successful, and Unacceptable. In addition to the three levels defined above, you can define the two additional levels like this:

First, change the definition above for Outstanding to the definition for Exceeds Successful. Then add the new definition for Outstanding to be:

Outstanding – Performs at the Exceeds Successful level, and in addition develops creative solutions for difficult challenges that arise during the appraisal period.

Then modify the Unacceptable level so that it comports with the Minimally Successful level like this:

Minimally Successful – Performs any single task in a manner inconsistent with the expectation set for the Fully Successful level.

Unacceptable – Performs two or more tasks in a manner inconsistent with the expectations set for the Fully Successful level.

A Desire to Distinguish Among Important Tasks

Let’s say that after you review your list of important tasks, you conclude that although all of them are important, some are REALLY important; more important than the others. If you want to address this, it’s easy. Just sort the tasks into two groups, like this:

Major Tasks

  1. Provides access, as appropriate, to offshore energy and marine mineral resources.
  2. Oversees the environmentally sound development of these resources.
  3. Coordinates the review and analysis of offshore energy and marine mineral lease proposals.

Standard Tasks

  1. Manages the Financial Accountability and-Risk Management Program.
  2. Administers lease adjudication and management functions.
  3. Conducts environmental reviews, analyses, and consultations for proposed activities.

Once that’s done, you can make all sorts of decisions as to what you will accept as satisfactory performance.  Perhaps you want the Successful level to be, “Performs all of the following Major Tasks within established time limits, consistent with accepted practices in the field, and free of any errors in the final product. Performs the following Standard Tasks within established time limits, consistent with accepted practices in the field, and free of any errors in the final product, with no more than two exceptions during the year.” Maybe you decide that you want the Unacceptable – to be, “Performs any Major Task or three Standard Tasks in a manner inconsistent with the expectation set for the Fully Successful level.” You can mix and match Major and Standard Tasks all day long until you get just the right combination of task failures to define your expectations.

Remember our bias here at FELTG. We don’t see a lot of reason to get all wrapped up in distinguishing among the levels of performance above Unacceptable. Yes, there’s a lot of judgment left to the supervisor in the above FELTG-Method©, but there is going to be a lot of judgment any time you rate an employee’s performance (if you doubt that, watch the judging of the figure skating event at the Olympics). So, cut to the chase, focus on the demarcation between Unacceptable and whatever you call the performance level above that, and you’ll be an Accountability Sheriff, protecting the federal workforce from shoddy performers and defending our way of life here in The Greatest Country in the World. Go get ’em. Wiley@FELTG.com

“Turn Out the Lights, the Party’s Over”

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By William Wiley, February 6, 2018

That old party-ending song by the Spaniels seems appropriate this week. In case you haven’t heard the death knell tolling, here’s the shot heard ’round the civil service last week. From the State of the Union address:

“Last year, the Congress passed, and I signed, the landmark VA Accountability Act.  Since its passage, my administration has already removed more than 1,500 VA employees who failed to give our veterans the care they deserve. … So tonight, I call on the Congress to empower every Cabinet Secretary with the authority to remove Federal employees who undermine the public trust or fail the American people.”

Media outlets on both sides of the political spectrum foresee this initiative, if it comes to pass, as making it easier to fire people from government as the President claims has happened at DVA this past year. Of course, some talking heads think this is great, and some think this is terrible. Here at FELTG, we take a step back and try to understand just what it means before we jump to judgment.

First, though, a prologue. If an initiative gets into a State of the Union address, you can bet your next paycheck that there is someone very important and powerful in the administration behind the idea and willing to make it happen. This is not some stray remark that will be forgotten after the next tweet storm. This idea has legs, it beat a lot of other ideas out to make it to the speech, and somebody is going to be pushing hard to make it law.

With that said, if the DVA procedures are implemented for the rest of government, let’s take a look at what will change. Read carefully because some of what I’ve seen in the media is not exactly accurate or is misleading. If you get it here from the employment law pros, you get it right.  All numbers refer to calendar days:

Removal Procedure Most of Government DVA New Law
Employee right to a PIP for poor performance Yes No
Proof necessary to support removal Preponderance Substantial
Days for employee response to proposed removal 7 10 (I think)
Days between proposal & removal 30 Usually 21
Days to file an appeal to MSPB 30 7
MSPB stay authority (to order agency to stop) Yes No
Days for AJ to rule 120 (flexible) 63 (firm)
AJ authority to reduce penalty Yes No
Days to appeal an AJ decision to Board 30 9
Days to appeal of Board decision to court 35 9

Grouping the changes allows us to consider their value in the real world (not to be confused with the World of Capitol Hill):

Shortened Time Frames – Reducing the response and decision periods while the employee is on salary makes sense. Let’s get this thing done and get the employee off the payroll. However, we have to admit that a nine-day reduction – with only five to seven of those days being in a pay status – isn’t the greatest salary savings we can imagine; it’s a mere drop in the bucket considering the agency’s overall payroll.

In comparison, shortening the appellate time frames, when the employee is no longer on the payroll, doesn’t seem to create much benefit for the agency, other than one big one that no one’s talking about. Shorten the time frames for an appeal, and we’ve reduced the employee’s opportunity to find a lawyer-representative, and for that representative to put together some sort of defense of the employee. Is it really fair to the employee to allow the agency unlimited time to build a case for removal, then restrict the employee’s time to prepare a defense for no good reason other than disadvantaging the employee? We’ll leave it up to the appellants’ bar to argue that one further.

Reduced Burden of Proof – A lot has been made of this aspect in the press. On paper, lowering the agency’s burden from “more likely than not” (preponderance) to only substantial evidence looks like a big deal. Substantial evidence is “more than a mere scintilla of evidence, but less than the weight of the evidence.” Jones v. HHS, 834 F.3d 1361, 1366 (Fed. Cir. 2016). That should be a major change when we consider that a scintilla is no more than a particle, iota, jot, whit, atom, speck, bit, trace, ounce, shred, crumb, fragment, grain, drop, spot, modicum, hint, touch, suggestion, whisper, or suspicion.

Unfortunately, reality doesn’t give us a lot of hope with this change. Since 1979, the burden of proof an agency must satisfy when firing someone for misconduct has been at the preponderance level. However, in 2015 the good folks at MSPB’s Office of Policy and Evaluation surveyed a bunch of federal managers and found out that 97% (97 freaking percent!) of front line supervisors think the burden is much higher than that. In fact, 90% thought we need just as much proof to fire someone from government as we need to send that same person to the electric chair. Congress could lower the evidence burden even further – to a jot, iota, or whisper – and it would do no good if the profession of civil service law doesn’t do a better job of explaining things to decision-makers.

No More Penalty Mitigation – Of the three areas of change, this one stands to be the greatest benefit to agency managers who are trying to hold employees accountable (and the greatest worry to our friends on the union side). Today, when an agency builds a removal case, half the effort goes into defending the penalty against mitigation; analysis and proof of the famous Douglas Factors. Here at FELTG, when we draft a proposed removal for a supervisor, the charge is usually no more than a page, and the Douglas Factor Worksheet is often three or four pages. Each worksheet page requires file evidence to prove each factual statement in the Douglas Factors. Little is more painful in our business than losing a removal – even though misconduct was proven – because the Board concluded that our penalty was too severe.

Under the DVA’s new procedures, prove the misconduct that is charged, and we’re done. No need to muster evidence to defend against mitigation on appeal. Woo hoo! But think how this could work out. The 20+ year employee with no prior discipline and outstanding performance ratings comes to work 15 minutes tardy one day. If the agency fires him and proves the tardy charge, under DVA’s new law, it appears that we’re done. The Board and the courts have no authority to lower the penalty. If they uphold the charge, they uphold the removal, even though most of us would consider the misconduct to be trivial. Is this really what we want for our federal employees? Is this what we would call an efficient civil service?

Lots of speculation in this situation, folks. And I defer to anyone who has a better handle than do I on DVA’s new law and the direction we’re going with this whole thing. Until we start getting some case law, and until Congress decides whether it will follow the lead of the President, your guess as to how things will look this time next year is just as good as anyone else’s. Wiley@FELTG.com

What a New MSPB Board Member Nominee Should Know

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By William Wiley, January 30, 2018

Finally, after all those political donations and fund raisers, your name pops up as a candidate for a political appointment in the current administration. When you get The Call from White House personnel, your little heart starts to flutter. Will it be the ambassadorship to Ireland? The Under Secretary of State assigned to Europe, Japan, and (interestingly) Honolulu? Or, maybe you’re going to be asked if you’d like to be on the short list for the next vacancy at the Supreme Court. You can hardly wait to find out what they’re considering you for. Your mom has the hometown newspaper holding a space on Page One for the big news.

And then the shoe drops. The President is thinking you’d be of great service as a member of the MSPB. There goes the front-page article. Having no idea what those initials stand for, you quickly Google for more information while you’re telling the caller how honored you are and how you’ve always dreamed of serving the President in his still-new administration. Trying to find out what you might be getting yourself into, you hastily type into the browser’s search field www.mspb.gov. And suddenly you come to believe that you are going to be appointed to a mental hospital located just south of Bordeaux, France.

Fortunately, you soon see your error. The correct site is www.mspb.gov. Whew. Learning French was going to be hard, especially those medical terms.

OK, so you’re being nominated to be a Board member. And after a bit of reading, you find out that this is what a Board member’s life is like:

  1. The Board’s judges do the heavy lifting by conducting a hearing, weighing the evidence, then issuing an “Initial Decision” resolving the appeal of some poor fired civil servant or some other matter within MSPB’s jurisdiction.
  2. When an appeal of the judge’s decision is filed with the Board members, the case is worked by the career staff at HQ, then forwarded to the three Board members for their consideration of a draft decision.
    • If a member agrees with the career staff’s recommendation, he signs his name as adopting.
    • If a member disagrees with the career staff’s recommendation, he drafts a memo to his two colleagues about why he is disagreeing and arguing for a different outcome and a rewritten decision.
    • The other two members then review the appeal file and can either a) concur with the staff’s recommendation, b) concur with the other member’s proposed rewrite, or c) come up with their own proposal for rewrite.
  3. The case then circulates among the three members until at least two of them agree as to how the decision should be written.
    • If there is agreement that the staff’s recommendation is correct, the members sign a vote sheet indicating their agreement, and within a day or two the recommended decision is issued as the Board’s final opinion and order.
    • If there is agreement that the staff’s recommendation is incorrect, the case is returned to the staff for a rewrite.
    • When the rewritten decision is forwarded to the three members, it’s subject to the same rotation for voting and argument as before, although it’s unlikely much argument will happen as the members have already spoken as to the outcome they will adopt.
  4. If all three members agree, the final decision is issued after the original or rewritten opinion and order is adopted by all three members.
    • However, if one of the members disagrees with the other two, that member is given the opportunity to write a dissenting opinion.
    • Then that Dissent is circulated to the other two members to give them an opportunity to respond to the Dissent in the Majority Opinion.
    • Then the dissenting member is given an opportunity to respond to the changes made to the Majority Opinion by modifying the Dissent.
    • And thus, the case goes ’round and ’round until all three members have said all they want to say, and then the final opinion and order is issued.

While you’re on hold with the White House, waiting to talk directly to the President and accept the honor of a nomination to be a Board member, you think about this work that you’ll be doing. You moved paper before, thought about things, and made hard legal decisions. You can do this. When, you retrieve the Board’s annual report, you realize that about five appeals enter the Board every workday. That means that on your end, you’ll have to vote a final decision out on five cases a day to stay even with the incoming workload. OK, that’s a lot of adjudicating to do. But you’re a can-do sort of person, and by really leaning in, eating lunch at your desk, and forgoing long vacations, you can make this happen.

And then you read the FELTG newsletter. There you find out that because the Board has lacked a quorum for over a year, your caseload is not five decisions a day to adjudicate, but 800 pending appeals PLUS five new ones that come in every day.

The automated announcement on the phone says that you’re now being taken off hold:

President Trump: “Hello, this is the President. I’m delighted that you’ve agreed to take a position in my administration!”

You:  CLICK.

Lordy, we hope that somebody out there will accept an appointment to be a Board member given the current situation. Perhaps someone with no family, no friends, and a fondness for working indefinitely beyond the point of mental and physical exhaustion. Our country will be forever grateful.

However, if you do get The Call, we couldn’t blame you one bit if you took a pass. Life’s short. It’s so much more fun casually reading the FELTG Newsletter and going early to happy hours than reviewing all those old boring legal briefs that will be shoved at you.

But if you do take The Call, don’t say we didn’t warn you. Wiley@FELTG.com