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The Simplest Rule of All

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By William Wiley, September 19, 2017

We routinely invite participants in our FELTG webinars to email us with follow-up questions if we can be of further help. The fundamental question below came from a recent participant who had a head-hanging problem. Unfortunately, it is too late for us to help this time, but next time, she’ll be prepared:

Dear FELTG Sensei-

I struggled for four years with a deeply troublesome employee and I eventually left the job because of him. He was an older male and very crafty. My successors and I had no end of trouble with his behaviors, one of which was to hang his head and stare into his lap at meetings (and generally require us to work very hard to extract more verbal input), keeping his door shut, etc. Nonetheless I’m amazed to know that, as you have taught, I could have implemented a rule that he could no longer hang his head and stare at his lap in meetings, or that his door must remain open unless he’s in a meeting. I have no doubt that if I had issued a written reprimand for one thing, he would then comply, and implement some other troublesome/disruptive behavior. 

So how does one deal with an employee who constantly plays a game of complying with each successive rule and has a dozen other ways to be difficult? I would appreciate your thoughts on this. Many thanks!

And our always-enlightening FELTG counsel:

Dear Participant-

Yep, you really can tell them what to do. I once worked with a supervisor who required an employee to smile at everyone he spoke to at least once a day, and reprimanded him when he did not. The law is a powerful thing if you understand it. Employees really do have to obey their supervisors.

The trick to multi-jerkiness is progressive discipline. First head hanging after being told not to do it = Reprimand. Closing the door later after being told to keep it open = Suspension. A third offense of anything demonstrates that he does not respond to discipline, and a removal is usually warranted. Or, if you really want to be extra conservative, you could give a second, longer suspension. A fourth offense of anything has always been a removable offense. Always. He’s not going to get to a dozen other ways to be difficult because he’s going to be fired way before then.

Hope this helps. Take care out there-

Sometimes it’s the simplest things that drive us nuts. Grasping the concept that if an individual wants to be paid, he must do what his boss tells him is fundamental to being a federal supervisor. As we often say in our seminars, when a new employee raises her hand and takes the oath to be a civil servant, what she is really saying – by law – that “In exchange for getting paid every two weeks, I will:

  • Do what my government tells me to do,
  • Where my government tells me to do it,
  • When I am told it is to be done.”

If she doesn’t want to do any of these three things, that’s fine. They are always hiring at McDonald’s. Wiley@FELTG.com

Welcome to the Show

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By William Wiley, September 13, 2017

A few weeks ago, I was holding forth in a seminar of supervisors about one of the big secrets in our business. Learn the minimum and focus on that when confronted with a problem employee. With this philosophy of accountability, you’ll get the job done more quickly, with fewer grievances and complaints, and have less chance to mess things up. In application of that philosophy, the smart supervisor will avoid using legally useless tools like cautions, warnings, and admonishments. Instead, if you have a problem employee, and you’re ready to do anything, cut to the chase and issue a Reprimand to try to correct the misbehavior.

If you want to go from DC to Baltimore, you get on I-95 and drive north. You can also go from DC to Baltimore by leaving DC, driving to West Virginia, up through Pittsburgh, to Buffalo, back to Philadelphia, and then to Baltimore from the north. But why would you waste all that time, risk a lot more accidents, and spend a lot more money when you can just get on I-95 North? The same with accountability. When you’re ready to do something, move straight to a Reprimand, then a Suspension, and finally a Removal (Baltimore). Life’s too short to dilly-dally.

After explaining the principle of “avoiding the yellow donut” and going straight to the tools that work, I got a little push back from one of the class attendees. A lady in the front row – obviously smart and wanting to do a good job as a supervisor – asked why I would suggest avoiding letters of warning, caution, and admonishment. “Isn’t it our job to work with employees? To try to get them to be successful? Isn’t it a supervisor’s responsibility to take time develop his employees rather than just go straight toward removal if he isn’t working out?”

When she said that, I was reminded of little league baseball. If your son or daughter has participated in little league sports recently, you’re familiar with how they work. Everybody gets to play. Everybody gets a turn at bat. At the end of the season, everybody gets a certificate of accomplishment. The coach’s job is to help each player to rise to the level of his or her potential. Winning is not as important as playing.

Compare that to the big leagues, “The Show” as they sometimes call it in baseball. Players compete for the privilege of playing. Coaches coach, but they also are strong evaluators. If a player turns out not to be very good after being given a period of time to demonstrate performance, he’s cut from the team and another individual is given a chance to bat.

With all respect, the class participant who wanted to emphasize developmental efforts rather than accountability tools is taking the little league approach to federal supervision. Taking lots of time to work with individuals, holding their hand as they try to do their job, avoiding the tools of accountability … that’s all good when the goal of the endeavor is to develop individual kids to play the game as best they can. But that’s not the goal of a federal agency. Ours is not a place where people get hired so they can have a job (can play a position).

Ours is a workplace where people get hired and continue to be paid because they successfully contribute to the productivity of the government. At least it’s supposed to be run that way. Sure, you may want to coach employees so that they can do the best they can do. But if their best is not good enough, whether you coach them or not, remember that your primary responsibility as a federal manager is to run your part of the agency efficiently. If Congress had wanted it to be otherwise, there would be laws that say, “Removal is to be avoided,” or “Individuals should be retained as employees if they are working really hard and to the best of their ability.”

I checked. There are no laws that say that. In fact, the law that says what you are to do as a federal supervisor has been in place for 40 years. You are to 1) give the employee expectations (“Get a hit!”),  2) give the employee a chance to meet those expectations (“Wiley, you’re batting fourth.”), then 3) fire the employee if he strikes out. 5 USC 4302.(b)(1) and (6).

Welcome to the big leagues, my friend. Yours is not a little league government agency. You’re in the pros now. Cuts are allowed here, even mandatory if you know the law. Everyone doesn’t get to be a federal civil servant. Only the best of the best are supposed to be playing in this game. As Slider said to Maverick and Goose in Top Gun, “Remember, boys, no points for second place.” Wiley@FELTG.com

R U a Smart Employee Relations Specialist? Take the Test and Find Out.

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By William Wiley, September 13, 2017

If you have been to any of our FELTG accountability seminars, you know that we are big fans of performance-based removals. When it comes to firing bad employees, if the choice is between initiating the misconduct (5 CFR 752) approach or the performance (5 CFR 432) approach, with one exception, we recommend that the supervisor always choose the performance procedures.

Let’s start with the exception. If an employee engages in a single act of misconduct that’s so bad that it warrants removal, then fire the employee for misconduct. If an employee hits a coworker between the eyes with a two-by-four, it makes no sense to issue a PIP and give him a chance not to hit anyone else for the next 30 days. A singular act of first-offense serious misconduct warrants immediate use of the 752 procedures.

In comparison, lesser acts of bad behavior should always be screened to see if they can be dealt with by use of the 432 procedures instead. If the employee’s bad acts can fairly be considered as evidence of Unacceptable Performance on any critical element, the supervisor has a choice between 752 and 432. Here’s how the two options play out:

The Players

Pam is a wise, experienced employee relations specialist. She has seen most of it in her career, and reads MSPB decisions that address everything else. She’s comfortable using the 432 procedures, and almost always recommends them as a good option to supervisors who are dealing with a problem employee. Pam is decidedly attractive in a classy sort of way, exceedingly charming, and has a solid, calm personality.

Pat, on the other hand, has a couple of years in the business, but hasn’t found a need to do much case law research. She used the 752 procedures a couple of times and thinks that they are the only way to go. Someone once told her that the 432 procedures were “hard,” and she never bothered to learn much about them. Pat is known to skip bathing several times a week, spits when she talks, and is afraid of squirrels.

The Scenario

Sally Supervisor needs help. She has a problem employee, Ed, who is causing problems, not producing, and not obeying rules. As luck would have it, the employee’s latest screw-up is not bad enough to fire him, but probably justifies an Unacceptable rating on one of his critical elements.

Incident 1

  • Pat, being an old 752-aficionado, recommends a Reprimand. Discipline early, discipline often is his motto. Sally issues Ed a Reprimand, and Ed promptly files an EEO complaint claiming race, sex, and age discrimination as well as an administrative grievance claiming a violation of agency discipline procedures.
  • Pam, appreciating the advantages of a performance removal, recommends a PIP. “PIP ‘em early, PIP ‘em often” are her by-words. Sally issues Ed a PIP initiation memo. Ed soon learns that the initiation of a PIP cannot be the basis of a race/sex/age/etc. discrimination complaint and is excluded from the agency’s administrative grievance procedure, as well.

Incident 2

A couple of weeks later, Sally reports that Ed has engaged in a second incident of bad behavior.

  • Pat is all excited. She lives for progressive discipline. She recommends a three-day suspension. Sally dutifully proposes the suspension, Ed responds 24 hours later, and Margaret Manager imposes the suspension, to be served immediately. Ed then files a new EEO complaint as well as a second grievance.
  • Pam is all excited, as well. The PIP specified that Ed could make no mistakes during the 30-day PIP. Because of this incident, the PIP can be terminated and Ed’s removal can be proposed now. Already, the 432 procedures have given the supervisor the option of removing Ed today rather than waiting for a third incident that will be necessary for a 752 removal.

Incident 3

Just a couple of days after he returns from his suspension, poor Ed commits a third act of misconduct/performance.

  • Pat’s ploy to go with the 752-approach has finally paid off. Of course, had there not been a third offense, Ed would have dodged the bullet and remained an employee indefinitely. But the three-strike rule is activated and Sally proposes Ed’s removal. Margaret decides it, and Ed files his MSPB appeal.
  • Pam already had a removal case at Incident 2. However, now that she has another incident, she has twice as many as are needed to declare old Ed to be Unacceptable. Sally proposes removal, Margaret affirms the proposal, and Ed files an MSPB appeal.

The MSPB Appeal

  • Pat’s got some work to do. First, she has to prove that Incident 3 occurred. If she cannot, Ed gets his job back. Also, Margaret has to testify (with supporting evidence) that removal is the penalty warranted under a Douglas Factor analysis. If she fails here, MSPB can reduce the removal to a suspension. Pat’s burden of proof as to the charge and the penalty assessment is at the preponderant level; 51% of the evidence must support the agency’s conclusions.
  • Pam, on the other hand, is carrying a smaller brief case. She only has to prove that EITHER Incident 2 OR Incident 3 occurred to have the removal sustained. She does not have to present ANY Douglas Factor penalty analysis because the Board cannot mitigate a performance removal. And her burden as to either incident occurring is only at the substantial level, maybe 40% of the evidence has to support the agency’s conclusion.

Conclusion

Folks, if you are working with an employee relations specialist who reflexively recommends that a misconduct removal is always to be preferred to a performance removal, you are working with an idiot. I’m sorry if that last line is offensive to some of you idiots out there, but this is not an opinion issue. This is a fact-based conclusion. I am exhausted by practitioners in this business who make recommendations that are not supported by the case law. If you can read the above and still remain committed to a belief that the misconduct procedures are routinely better than the performance procedures, there is something wrong with your ability to analyze facts and draw conclusions. Leave us. Go work in classification where you can’t hurt anybody. Wiley@FELTG.com

Solo Scriptura

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By William Wiley, September 13, 2017

A couple of things happened last month that caused me to do some personal psychoanalysis. In the first incident, I had just completed a training class for agency lawyers. As is my usual introduction to the seminar, I had said that I have 40 years of experience doing civil service law, much of it at the highest levels of government. I’ve personally been involved in nearly 10,000 adverse actions, either on the taking end or the adjudicating end. No brag – just fact: I have more experience in firing bad government employees than just about anyone you’re ever going to meet.

As the seminar broke up, one of the participants approached me to discuss a particular point. Although in the session I had said that the best approach was X (the issue doesn’t really matter), in her opinion the better approach was Y, the exact opposite. She had previously identified herself as being new to civil service law, having worked in her position less than 18 months.

In the other incident last month, I had provided advice to a client regarding a particular matter, and told him the correct answer was “red” (again, the issue is unimportant). When he consulted with a senior attorney within his agency, that attorney responded with a detailed brief that referenced several MSPB decisions for the proposition that the correct answer was red, but in his opinion, without reference to any authority, he concluded that the better answer was “blue.”

In both incidents, I was taken aback. In fact, I found myself feeling anger. How could these people disagree with me? Don’t they know who I am?? On recognizing those feelings, I became embarrassed at myself. How arrogant I must be to expect everyone to agree with what I say. What a jerk. Thank goodness, I didn’t say anything. They are entitled to their opinions, just like I’m entitled to mine.

But the more I thought about it, using my highly advanced self-analysis tools developed through a year and a half of graduate school in psychology, I came to the conclusion that my anger was not based on arrogance. Rather, it was based on the objective fact that these two agency lawyers, well-paid and held out to be civil service law experts, were ignoring the case law and substituting their own opinions as to what the correct answer should be. That X is the better approach than Y is not my opinion, it is the conclusion that anyone would reach who has read the case law extensively. That red is better than blue was borne out by the second attorney’s own research, which he promptly rejected because he believed personally that the correct answer should be blue.

And therewith is one of the problems in our profession. We are paid to give our opinions as to the proper courses our clients should consider. We are smart (more or less), and it is a real ego stroke to have another smart person ask for our opinion on something. But we breach the responsibility of our profession, whether we be lawyers or Human Resources specialists, when we give our personal opinions rather than legal opinions based on written decisions of the boards, commissions, authorities, and courts. It’s the individuals who inhabit those lofty institutions who are empowered to have opinions, not we lowly agency advisors.

If we say that the answer is X or red, we should be able to point to authority for that conclusion. Here at FELTG, we pride ourselves on being able to do that for everything we teach. Whether we rely on case law or science for a particular proposition, you can be sure it’s not just us spouting off what we think the answer should be. If anyone else tells you the answer is Y or blue, tell them to put up or shut up. Unless that advisor is a judge or a Presidential appointee empowered to oversee some aspect of the civil service, without a citation to a piece of paper somewhere for authority, his best guess is no better than chance. And perhaps, even worse.

This issue is the same as the issue that caused Martin Luther to break with the Christian church of that time. Up until the day in 1517 he nailed his theses to that door, the church upper hierarchy decided what Christianity should be. They read the book (in Latin, thereby limiting interpretation to the priestly Latin-speakers), told the believers what the book actually meant to say, and sometimes shaded their interpretation in exchange for a small contribution to the church building fund. Well, Martin Luther said that’s wrong. He believed that there was no need to place interpreters between the written word and the worshiper. Let the congregation read the pages for themselves, in English and German and other languages relevant to the people. His reform efforts got him uninvited to the church’s Christmas party, but his point was right-on.

Martin Luther’s call to arms was “solo scriptura!” The Bible didn’t need interpretation, it spoke for itself. In our world of civil service law, we might say something like “solo authority!” Our advice to our clients should come from published controlling authority, not from some internal opinion of how the world should be. Amen. Wiley@FELTG.com

The Dreaded Yellow Donut

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By William Wiley, September 5, 2017

Here at FELTG from the very beginning of our existence, we’ve taught that the best approach to discipline is to focus on the minimum steps that have to be done and to avoid doing things that have no legal value. The obvious reason we make this recommendation is that the more unnecessary things you do with a bad employee, the longer it will take you to be able to use the ultimate accountability tool: removal from federal service.

The other reason we make this recommendation is a bit more insidious, and a product of our protective civil service system. In reality, just about any personnel action you take with an employee can be challenged through one or more of the redress systems available to federal employees who feel that they have been mistreated. If you do something to an employee and he thinks it is because of his race/sex/age/etc., he can initiate an EEOC complaint against you, involving a big investigation and perhaps even an administrative hearing at which you’ll have to defend your action before a judge. If you do something to an employee and she thinks it is because she’s a whistleblower, gird your loins for an investigation by those tough investigators over at the US Office of Special Counsel. If you do something to an employee and he thinks it’s because he’s a union official, here comes the crew over at the Federal Labor Relations Authority, prosecuting you for committing an unfair labor practice.

If you decide to take formal steps to hold an employee accountable for misconduct or performance, you probably are going to have to defend yourself before one or more oversight agencies, no matter what. For your own sanity and the well-being of your children, you should avoid doing any more to an employee than necessary, because the minimum steps will keep you busy enough, and you don’t want to have to defend yourself any more than you have to.

When we make this point in our seminars, the graphic we use is a three-part bulls-eye target containing all the options a supervisor has when confronted with a bad employee. The outer blue ring symbolizes options we have to admit are options, but they are illegal: DON’T DO THEM. For example, you could spank the employee who doesn’t obey your orders. DON’T SPANK YOUR EMPLOYEES (but it is an option).

The middle of the target is the red bulls-eye. This is where you want to put your efforts: Reprimands, Suspension, and Removals. Those are the primary tools of discipline. We teach that they should be the exclusive tools that a supervisor uses.

That leaves us with options in the middle band, the circle of options around the red bulls-eye middle and inside of the purple illegal options area. These options are legal, but they have no legal value. You do not need to do them to hold employees accountable, and they help you in no way as far as defending yourself should you ever decide to fire the employee. In our seminars, this collection of options has come to be known as the dreaded “Yellow Donut.”

So what are some actions out there in the Yellow Donut that are to be avoided? Well, they are actions we see all the time, often memorialized in agency disciplinary policies: e.g., Admonishments, Letters of Caution, Letters of Warning, Letters of Counseling, and Letters of Expectation. When a supervisor gives one of these documents to a problem employee, it feels as if the supervisor is doing something worthwhile, but she really isn’t. These items do not meet the case law definition of “discipline” in most cases, and therefore cannot be used for the purpose of progressive discipline. Sometimes supervisors tell us that they have been advised by Human Resources or legal staff that these actions are a necessary precursor to issuing something actually worthwhile, like a Reprimand or Suspension. Well, unless your union contract says otherwise, they are not.

Not only are they a waste of time, they also give the employee something to challenge. Last month, I was involved in an OSC investigation in which one of the two personnel actions being challenged as whistleblower reprisal was a Letter of Admonishment. The settlement figure in that case – the amount the agency agreed to pay the employee to have it all go away –  approached a half-million dollars.

In part, for a freaking Yellow Donut.

Look. If you want to stop by Dunkin’ every couple of hours for a delicious glazed yummy, that’s between you and your waistline. But if you want to do this business like a pro, holding employees accountable expediently and fairly, then drop those Yellow Donuts from your disciplinary diet. As Deb always says, they aren’t anything but empty calories. Wiley@FELTG.com

I’ll Never Understand the Hatch Act

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By William Wiley, August 29, 2017

Oh, boy. It hit the fan a couple of weeks ago, didn’t it. “Postal Workers Campaign for Clinton on Government Time!” screamed one headline I saw. Several Congressman have expressed outrage and a couple of oversight chairmen have asked various agencies to produce information related to federal employees participating in “union-official political activity.” Other postal employees had to be paid overtime to cover for the employees out campaigning. The US Office of Special Counsel reportedly issue a finding that postal officials violated the Hatch Act by granting leave requests for employees to campaign for union-endorsed candidates. If you didn’t read closely, you might have concluded that the postal service actually hired individuals just so they could campaign for Democrats.

Well, I just don’t get it. According to OSC’s website, the Hatch Act says that federal employees, like these union folks at the postal service, cannot “engage in political activity while on duty or in the workplace. Federal employees are ‘on duty’ when they are in a pay status, other than paid leave, or are representing the government in an official capacity.” As for off-duty conduct, away from a federal worksite, “federal employees may express their opinions about a partisan group or candidate in a partisan race.”

As for the status of the postal service employees who were campaigning politically, every report I can find that gives any detail says that they were on leave without pay. As I read the Hatch Act and OSC’s guidance, if the individual is not “on duty,” then he is free to “express opinions about a partisan candidate” (e.g., campaign). I’ve been around a long time, and that’s always been the rule. Be careful and refrain from political activity:

  • When on the clock,
  • On government property, or
  • Using your governmental position in some way (sorry we didn’t get this article out sooner, Secretary Carson).

If these guys were in an LWOP status, where’s the Hatch Act prohibition on campaigning? And why in the world would it be the postal service’s management officials who approved the LWOP who have been found by OSC to have engaged in a “systematic violation” of the Hatch Act? If you have had experience with collective bargaining, you know that unions often bargain for time off for things; sometimes paid official time (e.g., to represent in Weingarten meetings) and sometimes unpaid time (e.g., to attend union conventions).

Is the violation of the act found in the fact that the agency knew that the LWOP was being used to campaign? Even if the agency knew of the purpose when it agreed to the excused time off, how does that make it a Hatch Act violation? Individuals are free to campaign as long as they are not on duty time. These individuals were not on duty time. They have a Constitutional right to express their political views (freedom of speech and association, as I remember my Constitutional law hornbook). Just because they earned the right to be on non-duty time through collective bargaining doesn’t seem to me to make this into a Hatch Act violation on the part of agency management. What if an employee had individually asked for LWOP (or annual leave) to campaign. Would it have been proper for agency management to deny that request? I don’t think so. Denying a leave request for political reasons seems a lot more like a Hatch Act violation than does what happened here.

I’ve never worked at OSC and been responsible for giving out Hatch Act advice. However, I have helped adjudicate a couple of charges of Hatch Act violations brought by OSC. Even so, I am the last person in the room to claim to be a Hatch Act expert. And with all those disclaimers, I have to admit ignorance. How this is a Hatch Act violation on the part of postal service management (or the individuals in the postal service union) has got me befuddled. I think I’ll take some leave without pay to consider it more deeply. Wiley@FELTG.com

Such a Fundamental Question

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By William Wiley, August 16, 2017

These days, the very foundations of our civil service are being reconsidered. Are the rights of our citizens being served by the federal government greater or less than the rights of individual civil servants employed by that government?

For example, consider a hypothetical situation in which the individuals appointed and hired to run a government agency have decided that an employee of that agency is not doing his job, perhaps is even engaging in dangerous conduct. If they decide to fire that employee, should another government entity – one not responsible for the output of the government – be empowered to require the employing agency to keep the individual at work? Keep in mind that the agency who knows him best and is accountable for his actions has decided he should be fired. Should our system allow for that decision to be overridden, even if only temporarily?

Well, that’s what we have today. OPM, an agency that provides no services directly to the general public, has promulgated a draft rule requiring agencies to keep employees at work for three to four weeks after the decision to fire them has been made. OSC, an agency not responsible for government efficiency, accountability, or costs has the authority to stop the removal of a bad employee if it believes it is “probable” that the removal is not based on merit. The employing agency that is accountable for the employee’s conduct has already determined that it is at least “more likely than not” that the employee should be fired. OSC, who has no skin in the game, comes along and concludes that it is “probable” that the agency has acted unfairly.

Is this how government should work? Because if it’s not, then Congress should be addressing this issue legislatively. As the Secretary of the Department of Veterans Affairs has been quoted as saying recently, when confronted by a stay order obtained by OSC to block the removal of a senior manager, “No judge who has never run a hospital and never cared for our nation’s veterans will force me to put an employee back in a position when he allowed the facility to pose potential safety risks to our veterans.”

That’s EXACTLY the issue Congress needs to be addressing. Who should be running the government? Managers responsible for the work of government or adjudicators who are not? Wiley@FELTG.com

You Aren’t Going to Like This

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By William Wiley, August 16, 2017

OK, kiddos. Everybody and their mother are re-considering the legal underpinnings of our civil service, and what can be done to make them better. Here at FELTG, we never shy away from giving out opinions, so here’s another one.

First, I need to premise the following by saying emphatically that I have no problems with unions in a government workplace. I believe that unions provide an important service for employees and overall make for a stronger government. I may have a bone to pick about certain union tactics or specific union cases, but as representatives of the interests of civil servants, I got no problem.

With that disclaimer, consider the following hypothetical. Let’s say that you’re the mayor of a small town. You have one stop sign. So you send your only law enforcement officer out to determine whether your citizens are obeying the law by coming to a complete stop at the stop sign, because you’re concerned about citizen adherence to the law.

After a couple of weeks, the cop reports good news to you. Apparently, all the citizens are law abiding. They all stop at the stop sign, and he hasn’t had to issue a single ticket to anybody. You are very pleased, you’re proud of your citizens, you tell the cop he has done a good job, and tell him to move on to other matters where he might not find as much law abidance. You need income for your town, but you clearly aren’t going to get it by issuing tickets for not coming to a full stop at a stop sign.

Now, let’s tweak things a bit. Let’s say that the only source of income for the town, and payment of the cop’s salary, is based on the income from tickets issued to people who disobey that stop sign. If you tell the cop this sad fact, that if he doesn’t issue any more tickets, he won’t get paid, what do you think the cop will do?

  1. Continue not to issue any more tickets. Or,
  2. Find some reason to issue tickets because his children are hungry and baby needs a new pair of shoes.

Well, if you picked 1, you are an idiot. Life doesn’t work like this. Humans act to preserve themselves. Survival of the fittest. Read Darwin if you didn’t pay attention in college. Or, Maslow if you skipped psychology class. We have no sympathy for you and wish you a speedy and painless exit from this world of federal employment law. Sad.

Now, take the correct answer of this hypothetical to the federal workplace in a unionized setting: 2. Management should never take a disciplinary action that is not warranted. That’s the law, just like stopping at the stop sign is the law. If management takes a disciplinary action and the reviewer of that action (the cop) has no incentive to find fault, then the action will be affirmed. However, if the cop knows that his salary depends on sometimes finding that management screwed up, the action on occasion is going to be reversed. No matter what, sometimes management is going to lose.

Take this hypothetical situation into a real federal workplace, where the employees are unionized, and in 1978, Congress said that they have the right to challenge serious discipline to either an MSPB judge or to an arbitrator. An MSPB judge gets paid no matter what she decides. There’s no quota of affirmance and reversal. When I was chief counsel to the Board chairman in the ’90s, we had a judge who affirmed agency removals 100% of the time, for at least 18 years of her career. She was seen as a good judge who got paid every two weeks, just like every other federal employee.

But what if the employee chooses an arbitrator? When an employee selects arbitration instead of an MSPB appeal, the union has an equal say in who the arbitrator will be.

Pop Quiz: Do you think that the union will agree to an arbitrator who always affirms management’s removal actions, or do you think that the union will only agree to an arbitrator who sometimes holds for the employee?

Again, if you believe that the union will agree to a cop who never issues tickets, you are an idiot. OF COURSE, when given a choice, as unions always are, the union will look to select an arbitrator who sometimes finds fault with an agency’s removal, even though agencies by law are required to always remove employees only for just cause.

Here’s our FELTG opinion, for what it’s worth, and remember you are paying nothing. Unions of government employees serve an important purpose in our society. However, the removal of federal civil servants for misconduct or performance should not be subjected to the oversight of individuals who are motivated to set aside removals. They should be reviewed only by individuals who have no vested interest in the result, such as MSPB judges. Any system otherwise, as is the current civil service labor law, should be modified to recognize this reality.

Until then, get used to it. Wiley@FELTG.com

“Just Quit”

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By William Wiley, August 8, 2017

If you’ve been around this business of civil service law very long, you’ve probably heard of the US Office of Special Counsel (not to be confused with Robert Mueller’s Office of Special Counsel over at DoJ). That tiny little agency (150+) has the awesome responsibility of investigating allegations of “prohibited personnel practices,” perhaps most importantly, allegations of the mistreatment of federal employees because they have blown the whistle. Congress loves this agency because whistleblowers make public Executive Branch malfeasance, waste, and law-breaking. Whistleblowers disclosed the possibility of significant harm to our veterans at certain DVA facilities because of employee misconduct. Whistleblowers also told us that some of the headstones at Arlington National Cemetery were misplaced, that TSA was allegedly reducing staffing levels to an unsafe level, and that the Department of Interior was dangerously reducing the amount of money devoted to protecting drivers on the Baltimore-Washington Parkway.

Here at FELTG, we often work with agencies who are undergoing an OSC investigation into possible whistleblower reprisal. If you are a repeat reader of this here newsletter, you know that we have previously expressed concern at some of the tactics we’ve seen investigators from that office use. Without rehashing those specifics, a couple of quotes from others might make the point from a different source. In our fantastic and fabulous seminar MSPB Law Week (next offered in DC September 11-15), we work with about 50 agency practitioners on many topics relevant to MSPB law, whistleblower reprisal investigations among them. Recently, we asked a group of attendees if any had ever been through an OSC investigation. Several attendees raised their hands. When we asked for take-aways from those investigations, a number of agency representatives volunteered their succinct perception and advice regarding the experience:

“Overreaching, intimidating, and scary.”

“One-sided and aggressive.”

“Just quit.”

For the un-initiated, OSC responds to claims of whistleblower reprisal from employees – if it believes that they may have merit – by contacting the responsible agency and asking for documents, phone records, emails, hard drives, privilege logs, contact information for former employees, schedules for witness depositions, and just about anything else it expects might be relevant to the reprisal claim. In our FELTG experience, the last response we helped an agency with required that we conduct document-by-document review of over 3,000 emails covering the past two years. (There went another of our Saturdays spent trying to help the civil service function with greater accountability.)

In the past as a practical matter, agency responses to OSC document requests were something of a dance; e.g., OSC would ask for five years of emails, we would offer two. OSC would demand emails that in any way mentioned the complainant, and we would offer only those relevant to the personnel action at issue. OSC would ask for emails between agency counsel and agency management, and we would refuse based on attorney-client privilege. Offer and counter-offer, threatening and responding to threats, sometimes cursing and spitting (among ourselves, of course … NEVER curse nor spit at an OSC investigator). Eventually OSC would get enough information on which to make a prosecution decision and the agency would retain some degree of confidentially in its records.

Well, my friends, that’s all about to be history. The Senate recently passed a bill, which the House will no doubt agree with, that will provide the following:

  • The Special Counsel will be authorized to have timely access to all records, data, reports, audits, reviews, documents, papers, recommendations, or other material available to the applicable agency that relate to an investigation, review, or inquiry.
  • The Special Counsel will be authorized to request from any agency the information or assistance that may be necessary for the Special Counsel to carry out its duties, and require the agency to provide to the Special Counsel any record or other information that relates to an investigation.
  • A claim of attorney client or attorney work product privilege by an agency, or an officer or employee of an agency, shall not prevent the Special Counsel from obtaining any material described above.

“Office of Special Counsel Reauthorization Act of 2017” S. 582

Hard to give OSC much broader authority than this. No requirement that an OSC investigator establish relevance for the information, so fishing is allowed. You can pack away that little JD behind your name if you thought it would allow you to engage in confidential communications with your employer. In fact, there’s no requirement that OSC tell the agency anything other than, “Here’s a list of the materials we need, and we would like them by COB today. Thank you very much.”

Woof.

There’s no clear enforcement authority within the legislation, so we don’t know exactly how OSC can go after any agency officials who refuse to comply with its materials demand. Historically, OSC has taken the position informally that a management official who does not obey its orders is committing a prohibited personnel practice, violating the merit systems principles. 5 USC 2302(b)(12). Unfortunately, we have no case law to direct you to for clarification as to exactly how all this works out and just where OSC’s ability to prosecute an offending management official starts and stops.

Hey, maybe this is the way that the civil service should be. If this bill becomes law, it will certainly free up my Saturdays for other things when I don’t have to be concerned about reviewing thousands of documents for privileged communications. If you are an agency lawyer and your blood begins to run cold when you read this legislation, chill. We have members of Congress today who believe that the civil service should be at-will employment. Turning over the keys and the codes to the agency’s files and communications is just another drip in the drip-drip-drip of civil service change.

So, if you don’t like it, close your eyes, think of England, and get used to it. Or, as the participant in our class suggested a couple of months ago, when you get that call from the friendly OSC investigator notifying you that a whistleblower reprisal investigation has begun, just quit.

Unemployment may well be the better option. Wiley@FELTG.com

Anthony Scaramucci and OPM’s Proposed Notice Leave Rule

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By William Wiley, August 2, 2017

You frequent readers of our newsletter know that here at FELTG we’ve been railing against OPM’s proposed rule regarding Notice Leave. That rule if implemented as drafted would require that federal supervisors retain federal employees in a work status after a decision has been made to fire them, except in the most unusual of situations, and only then after documenting the extensive consideration of other options and obtaining a variety of high level approvals. We argue that the rule should be rewritten to make it drop dead easy for managers to protect the federal workplace by removing fired employees from the worksite immediately, not several weeks after the decision to fire has been made.

Case in point: Anthony “The Mooch” Scaramucci. If you have been in a cave without wifi for the past several days, you’ll need to Google his name to find out what happened to this former federal employee. The bottom line is that, according to news reports, his supervisor decided that Mr. Scaramucci had engaged in conduct inconsistent with an efficient government, and relieved him of his duties. Hey, when there are 2.2 million workers, they can’t all be great like you and me.

Well, just think what the situation would be like if Mr. Scaramucci had been a career employee in whatever agency you work, instead of being employed at the White House. After making the decision to fire him, his supervisor would have had to find government work for Mr. Scaramucci to perform for a month because he does not fall into any of the categories of employees  that are covered by OPM’s proposed Notice Leave rule. He does not a) propose a threat, b) appear to need to destroy evidence, or c) seem inclined to destroy government property. According to OPM, employees like Mr. Scaramucci who’s removal has been decided should be retained in a work status so that the agency “can continue to benefit from the employee’s skillset and abilities to further the agency’s mission.” (swear-to-god, they say that).

So what would be Mr. Scaramucci’ s skillset from which the government can benefit? Well, my goodness, that gentleman does know how to turn a colorful phrase, doesn’t he. Perhaps we could ask him during this post-firing employment phase to provide comment to OPM regarding its proposed Notice Leave Rule. If so, in a wonderful New York accent, he might say something like:

“Are you [freaking] kidding me? What [d-bag] bureaucrat over there thinks this is a good idea? They should go [anatomically impossible essential function] themselves.”

You have minutes left (by August 14) to tell OPM what you think about the proposed rule. Please, for the sake of our great country, tell them.  Email pay-leave-policy@opm.gov.  When submitting comments via this email address, place this in the subject line:  RIN 3206-AN49: Proposed Rule Comments-Administrative Leave.  In the body of your message identify the section of the regulations on which you are providing comments. The proposed regulations can be found at https://www.gpo.gov/fdsys/pkg/FR-2017-07-13/pdf/2017-14712.pdf.

And if you choose to use some of that delightful New York language in memory of The Mooch, who could blame you? Wiley@FELTG.com