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Think About This Before It Happens to You

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By William Wiley, May 22, 2018

MSPB just established a new policy. You need to know it and decide what to do before you are called on to act on short notice.

As most all Board practitioners are aware, MSPB HQ has effectively been shut down since January 6, 2017. On that date, one of the two remaining Board members unceremoniously resigned before her term was up, leaving the Board with only one member and thereby without a quorum. MSPB quorums are essential to the Board being able to act. The three-membered Board, comprised of Presidential appointees, gets involved when either the firing agency or the fired former-employee files a Petition for Review (PFR) challenging the initial decision of an MSPB administrative judge (AJ). A single member cannot issue a final Opinion and Order to resolve a pending PFR. It takes two to tango; it takes two to adjudicate PFRs.

Many actions related to case handling taken by the Board require agreement among the Board members. No single Board member, with rare exception, has the independent authority to do much when it comes to the resolution of PFRs. The challenge this approach has caused has been magnified by the day-by-day growth of the pending PFR decision backlog for the past 16+ months. If you are a wrongly fired employee, every day that your case is not resolved is potentially one more day you don’t pay your rent, or eat, or can’t hold your head up at dinner with the family.

Hypothetically, the judge ruled against you in the fall of 2016. You filed your PFR challenging the judge’s misplaced initial decision, and began to wait for a Board decision on your appeal. In normal times, that wait would have been around six months – sometimes a bit more, sometimes a little less. However, being the smart appellant you are, about last spring you begin to realize that you aren’t going to be getting a decision on your PFR anytime soon. You decide that enough is enough, and file a motion to withdraw your pending PFR, formally asking the Board to dismiss your appeal. Better to be out of that mess than stuck there indefinitely, you might be reasoning.

But, wait! Your PFR is pending with a quorum-less impotent Board. If MSPB lacks the legal authority to issue any decisions, arguably it lacks the legal authority to grant your motion to dismiss your PFR. That two-to-tango thing might well apply to cases pending at MSPB HQ whether they are to be dismissed as withdrawn or ruled on in a decision. Maybe the single remaining Board member just can’t do anything.

Well, perhaps relief is in sight. MSPB just announced a policy that even with just a single member seated, the Board’s Clerk can grant motions to dismiss pending PFRs if:

  • The motion to withdraw is not based on a settlement;
  • It is unopposed by the other party; and
  • It is timely filed.

It appears that there might be some light at the end of the tunnel for parties to PFRs who are tired of waiting on a decision. But, wait! (Again.) What does “timely filed” mean? There’s nothing in the Board’s regulations that sets a time limit for filing a Motion to Withdraw. Will the Clerk use the time limits for filing the initial appeal documents? That doesn’t help the poor schleps who have been sitting at the Board for over a year, waiting on their government to act. And what does a withdrawn PFR do for the withdrawing party? Can an appellant whose PFR is withdrawn now file with the US Federal Circuit Court of Appeals, thereby challenging the AJ’s decision? Aren’t the time limits for that based on the date of the judge’s initial decision or a Board final Opinion and Order?  The drop-dead date for appealing to the Federal Circuit based on the judge’s initial decision has long passed in most cases, and a Clerk’s dismissal based on a Motion to Withdraw doesn’t feel like a final Board Opinion and Order. Finally, is this new policy even legal? Lordy, I hope so, ’cause if it’s not, we’re looking at some pretty messed up cases should this thing be overturned a couple of years down the road.

It appears to us here at FELTG that there are some questions yet to be answered relative to this new policy. However, it is a policy in force right now, so be aware and be prepared. For example, if you are an agency representative in a pending PFR case, will you object if the appellant who filed the PFR asks that it be dismissed? How would a dismissal be to your advantage?

Alternatively, what if the judge set aside your removal in the initial decision and you filed the PFR? Why would you withdraw your appeal? You’ve already restored the employee to interim paid employment. Is it worth it to give up your chance to be heard by a Trump-appointed Board to roll the dice and see if OPM and DoJ will support your appealing to the Federal Circuit? Even if so, will the Federal Circuit find your appeal there to be timely filed?

The leadership of the Board is to be commended for trying to do something (anything) to reduce the pain being suffered by agencies and appellants who are stuck in the backed-up toilet of PFR adjudication. Our FELTG guesstimate is that as of today there are about 1050 cases sitting there at Board HQ on M Street NW, waiting on just one more signature by a new member to be resolved. Although the President in March nominated two new Board members who will resolve the no-quorum dilemma, the Senate has not scheduled the predicate hearing necessary to get a vote on the nominees. And as all you Hill Observers out there know, if it doesn’t happen by mid-July on Capitol Hill, it ain’t gonna happen until the frost is on the pumpkin in the fall.

Sometimes we have more questions than answers, and this is one of those times. But that doesn’t mean you can wait on the answers. Get those great minds at your agency (or in your union) on a teleconference, discuss the pros and cons of withdrawing pending appeals, and make a smart decision about to what to do now, before it’s necessary to act. Wiley@FELTG.com

Room for Improvement at MSPB

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By William Wiley, May 16, 2018

As many of you readers know, MSPB has been under a heavy workload for many years, with decisions sometimes taking too many months (and even years) to get out. We’ve written in this space before as to how the Board could streamline its final Opinions and Orders. Today we take a look at a typical administrative judge’s Initial Decision, one that could benefit from some trimming and focus.

First, you might want to read the initial decision: Avila v. Agriculture, MSPB No. SF-0752-17-0488-I-1 (February 26, 2018).  If you do, you’ll find that it took the judge 24 substantive pages to do what we’ve done below in two. You’ll find some paragraphs in the decision to be over two pages long, with all kinds of extraneous information thrown in; e.g., the color of the trellises on which the marijuana plants were growing, the cost of the overflights, and the suggestion that a “criminal disruption” had been contemplated. Most distractingly, you’ll have to get to page nine before the judge bothers to tell you what the charge is.

Lengthy decisions like this take a lot of time to write and review on appeal. By cutting to the chase, the Board’s judges could save time, get these things issued more expediently, and still provide the appellant fair treatment. As importantly, it helps us all capture the big issues without being distracted. For example, in the original decision, you’ll see a lot of grand citations to grand principles of law, and a reasonable conclusion. However, what you’ll find missing is an analysis of the gravamen of the appellant’s argument: should she be held responsible for marijuana in her home if it was not her marijuana? Focused writing might have surfaced that issue for resolution.

So, here’s our FELTG Initial Decision, if we were in charge of how these things are written:

On May 12, 2017, the Forest Service removed Catherine A. Avila (appellant) from her position as Forestry Technician, GS-462-9 based on a single charge of “Conduct Unbecoming a Federal Employee.” The specification on which this charge was based describes the uncontested fact that marijuana was being grown on her property.  This appeal followed her removal. As explained below, I AFFIRM the removal.

ANALYSIS AND FINDINGS

Significant among the appellant’s duties was the requirement to work independently enforcing federal laws and regulations relative to the forest in which she worked. On April 29, 2015, Forest Supervisor Carlson issued a written reminder to the appellant and others that the possession of marijuana is illegal under federal law, and that law applies to all Forest Service employees regardless of contrary state laws. Subsequently, on July 19, 2016, Special Agent Mayo observed about a dozen marijuana plants in the backyard of the appellant’s home. In August 2016, Carlson again reminded employees that Forest Service employees cannot grow marijuana at home even if the employee’s spouse has a medical marijuana prescription. Subsequently, on September 27, 2017, Special Agent Mayo again observed about a dozen marijuana plants growing in the appellant’s backyard.

Following the second observation, an agency investigator questioned the appellant. In this interview, the appellant admitted:

  • She jointly owned the home in which she lived with her husband.
  • She knew that marijuana was being grown there.
  • People came to her home to purchase marijuana.
  • Her husband processed the marijuana in their home and transported it in their shared car.
  • The money from the sale of the marijuana was kept in the home.

Throughout the interview, the appellant asserted that the marijuana was not hers, but her husband’s. At hearing, the appellant attempted to recant part of her statement, asserting that she did not know whether there was marijuana was on her property or how her husband transported it. I find the appellant’s hearing testimony to be wholly unpersuasive and improbable. Hillen v. Army, 35 MSPR 453 (1997). Therefore, I SUSTAIN the charge.

PENALTY

The appellant is known throughout the community as an employee of the Forest Service. Possession of marijuana at her home affects her status and reflects negatively on the agency. Her work requires her to work independently enforcing federal laws and regulations. The fact that she continued in her illegal activities after being warned twice demonstrates exceedingly poor judgment. She has been previously reprimanded and suspended. Her actions reflect that she does not have an appropriate sense of how federal law applies to her. Therefore, I conclude that the agency’s selection of the penalty of removal is reasonable.

AFFIRMATIVE DEFENSES

The appellant claims sex discrimination in that she was not offered the opportunity to enter into a Last Chance agreement as were three male coworkers. However, such differential treatment is justified in that none of the male coworkers had previously been disciplined. Separately, although the comparator male employees had been involved in marijuana-related offenses, none had engaged in the more serious aspects of the charge in this case of cultivation, distribution, and sale of marijuana from their homes. As the appellant has presented no other evidence of sex discrimination, I find she was not the subject of sex discrimination.

The appellant also claims age discrimination. However, as she has offered no evidence of such mistreatment, I find she has not proven that she was the subject of age discrimination.

The removal is AFFIRMED.

The very earliest Board decisions were very short; some just a page. Over the years, MSPB and its judges have added more and more legal and factual verbiage to decisions, without any commensurate benefit. If MSPB wants to be around another 40 years, perhaps it should consider going back to the writing style of the good old days. Wiley@FELTG.com

How to Measure the Unmeasurable

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By William Wiley, May 1, 2018

Here’s a question that sometimes comes up in one of our performance management seminars:

How do I hold an employee accountable through the performance management process for performance expectations like respectfulness, professionalism, or team work? I know them when I see them, but I don’t know how to evaluate things like this.

Ah, life. If there was just some machine we could press against an employee’s forehead and get readings on things like this: “Wiley, you’re reading out at a 3.2 this morning on respectful attitude. Better work on that. And drop back by the office on the way home so I can take a close out reading for the day. Performance management is very important in our office.” Hey, Mark Zuckerberg. If you’re looking for something new to invent now that they’re closing down Facebook, maybe work on an Attitude-o-Meter.

Until we get some high-tech equipment involved, we’ll have to rely on another approach. And here it is.

When trying to hold an employee accountable for something difficult to measure – like “professionalism” – ask yourself, “How do I know when the employee is acting professionally?” In other words, what behaviors do you see (hear, smell, taste, or feel) that say to you that the employee is acting professionally? Does he participate in controversial meetings respectfully and cooperatively? Does he dress at a level commensurate with his job assignments? Is he on time for appointments and prepared for discussions? If these say “professional” to you, then you now have something you can observe. And if you can observe, you can count. And if you can count, you can hold the employee accountable (that’s why the word “count” is right in the middle of the word “accountable”).

Once you have the concept down, here’s how to use it. Let’s say you have a team supervisor who you want to hold accountable for demonstrating leadership skills. And then let’s say that you think an important demonstration of effective leadership is that each member of a team knows what the top three priorities are of the organization at any moment because priorities change so frequently. If you have an employee who you conclude is performing at the Unacceptable level of the Leadership critical element, you initiate a 30-day PIP with the following expectation:

Unacceptable Level: On two or more occasions during the PIP, a team member is unable to identify the top three priorities of the organization due to your failure to inform the team member of the most recent priorities.

Or, perhaps you believe that meeting participation is an indicator of “Professionalism.” You set the 30-day PIP firm benchmark of performance expectation like this:

Acceptable Level:  No more than one incident of failing to attend a meeting in any 30-day period.

Then, you count. When it comes to defending an unacceptable performance removal, numbers are not essential, but they are very helpful. So, take all those subjective (but important) concepts, convert them to behaviors, and then count them. Rather than saying “occasionally,” “usually,” or “sometimes,” set the expectations for the PIP at one-sies, two-sies, or three-sies. A judge might want to argue with you as to what constitutes “pro-active,” but it’s much harder for the judge to argue numbers.

Wiley@FELTG.com

Firing a Leaker

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By William Wiley, April 24, 2018

Civil service law issues seem to be all over the media these days: negotiating a tough union contract at Education, easing the firing rules at DVA, Hatch Act violations on the White House lawn. Things that used to be known only to those of us inside the business are now being discussed round-table on CNN. For once, we Federal employment law practitioners actually have a seat at the table.

But we don’t always get invited to dinner. Although our business is more frequently reported in the media, it’s not always accurately reported. Sometimes an article will be published that describes part of a situation, but fails to give a complete picture because someone didn’t understand civil service law. And that hurts us all. Such limited coverage by the media can leave the wrong impression in the mind of the reader.

Take, for example, an A-2 article published in the Washington Post on April 5: “Education chief Betsy DeVos asked whether leakers could be prosecuted,” subtitled “Internal report says lack of clear rules makes criminal charges difficult.”

Look, I never claim to be a criminal lawyer. Heck, I hardly claim to be a lawyer at all on most occasions. But I do seem to remember that criminal prosecutions are based on violations of law, not violations of agency rules. Violations of agency rules can result in administrative sanctions (e.g., firing). If an agency has a rule that an employee is supposed to be at his desk by 8:00, the employee receives an administrative sanction (e.g., Reprimand) when he reports to work late. He does not go to jail.

Of course, some agency rules are based directly on federal law. When that happens, the employee can be both criminally prosecuted and administratively sanctioned for a single incident. But those are two different procedures, based on two separate theories and two different burdens of proof (beyond a reasonable doubt vs. a preponderance of the evidence). So before I even start reading the article, the subtitle gives me pause.

Once into the body of the article, I see that it’s about a referral that senior leadership of the agency made to its OIG. The question presented by the referral appears to be whether there could be criminal sanctions for an employee who leaks information to the press about internal budget matters. The OIG response was reported as being that there would be challenges to criminal prosecution or taking significant administrative action against an employee-leaker because the agency has little written policy on how such information is handled.

Well, that’s not completely accurate.

First, we have to divide that answer into two separate sub-responses: criminal prosecution and administrative sanction. Indeed, there may be a significant challenge to a criminal prosecution. We need to find a law that is somehow dependent on the existence of an effectuating agency policy. As I claim no mastery of criminal law, I can’t say whether such a statute exists. However, I do know enough criminal law to acknowledge that the burden of proof in a criminal prosecution is the highest we have: beyond a reasonable doubt. So, indeed, perhaps there is a significant challenge related to leakers regarding criminal prosecution.

Not so for the other half of the response, that it would be challenging to take a significant administrative sanction against a leaker if there are no written policies. I may not know criminal law, but my middle name is “Significant-Administrative-Sanction.” And it is this part of the response that stops short of where it should have gone.

It is fundamental to disciplining a federal employee that there be a rule in place. That’s because we define misconduct as violation of a rule. Rules can come from written agency policy, guidance, and instructions. However, it is not a REQUIREMENT that the rule be memorialized in writing. An enforceable rule can be as simple as a supervisor saying to the employee, “Lock the office door when you leave.” We don’t need a door-locking written policy to sanction (e.g. discipline) an employee who subsequently leaves the door unlocked. Therefore, that part of the OIG response as it was reported in the Post that suggests that the defense of an administrative sanction is weakened because there is no written policy regarding leaking, is off the mark. Yes, we might like to have a written policy, but we certainly don’t need a written policy to sanction a leaker. If he has been told orally or informally in writing to keep the budget information private, and he discloses it to the press anyway, he can be disciplined just as severely as if the agency’s no-leak policy was posted on every official bulletin board.

Separately, it is well-established that an agency can enforce rules that it may never have told the employee about, but the employee should have known them anyway. These are sometimes known as “common sense” rules. As Deb often speaks about in our seminars, an employee who strips down naked at work can be disciplined even if the agency does not have a “Mandatory Clothing” policy on the books. It’s just common sense that you can’t do that.

As for what constitutes a common-sense rule in the situation in the Post’s article, we are fortunate to have a court decision squarely on point. About a dozen years ago, the Department of Interior fired an SES manager because that manager disclosed internal budget information to a Post reporter. In appeal of her removal, she argued that she could not be fired for doing something that no one ever told her not to do; i.e., there was no written agency policy nor oral instruction to her not to disclose that sort of information. In rejecting that argument, the court said, “Oh, give me a break. You were a senior manager of the agency. You should have known that disclosing internal budget deliberations was a no-no and that you should keep your sweet mouth shut.” Of course, the court said it more delicately than that, but you get the point. Chambers v. Interior, 515 F.3d 1362 (Fed. Cir. 2008).

So, we have two approaches to a Significant Administrative Action that do not depend on whether there is a written agency policy regarding the handling of budget information. A more fulsome response should have covered these options and noted that a Significant Administrative Sanction need be supported by only a preponderance of the evidence, thereby easier to support than a criminal prosecution.

And, I’m not finished criticizing.

The unauthorized release of internal budget information could quite possibly be related to a critical element in an employee’s performance plan. Find out who leaked the budget information to the press, conclude that such action warranted an Unacceptable rating on a single critical element, and the agency can initiate a PIP, an opportunity for the employee to demonstrate whether the leaker can go a whole year without again performing Unacceptably. If he fails, he can be fired for that future unacceptable performance event; e.g., the next leak. And that removal doesn’t even need to be supported by a preponderance of the evidence. Substantial evidence will do, a mere grain more than a scintilla, the lowest proof burden of all:

To sustain an action based on substantial evidence, there must be “more than a mere scintilla of evidence,” but a quantum “less than the weight of evidence” is all that is required. See Jones v. Department of Health & Human Services, 834 F.3d 1361, 1366 (Fed. Cir. 2016).

I have the greatest respect for OIG offices throughout government. The work they do is hard and sometimes underappreciated. And we never really know what has happened in this situation by reading a single article published in the media. At the same time, the principles above are well-established in civil service law, and learned by every attorney and HR specialist tested and certified through participation in the FELTG MSPB Law Week seminar.

Learn the law. Work hard to tell managers how to do something rather than why not to do something. We’re going to lose our civil service if we don’t do the best job possible when it comes to employee accountability.

Do this, and I promise not to try to practice criminal law. Wiley@FELTG.com

Here’s How Not to Fix the Civil Service

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By William Wiley, April 18, 2018

Consider this hypothetical. Wife gets home one night and says to Hubby, “Honey, the car is broken.” Hubby, being something of a shade tree mechanic, jumps from his Barcalounger and heads for the garage. First, he replaces the car battery. Then, he tunes the engine. Finally, he replaces the fuel pump because he knows that this particular model of automobile often has fuel pump problems. Proudly, he tells Wife about all the good things that he has done to fix the car. And that’s when Wife says, “But Honey, the problem is the rear axle is busted.”

The approach that Hubby took, attempting to fix something before identifying what is wrong, is exactly what Congress is doing relative to improving our ability to hold employees accountable within the civil service. Our leaders have already extended the probationary period in DoD from one year to two and are considering a similar extension for the entire executive branch. Separately, the President recently signed a bill into law that applies only to the Department of Veterans Affairs (DVA) that reduces the evidence burden in misconduct removals from preponderance to substantial, shortens the notice and appeals periods so that removals move a bit more quickly through the system, and takes away the authority for judges and arbitrators to mitigate removals to some lesser penalty if a removal is seen as too severe. And finally, Congress has taken away most of the authority for an agency to offer an employee administrative leave in exchange for the employee quitting without the agency having to defend a removal through the litigation process.

Yet, I see no evidence that our leaders have taken the time to check the rear axle before making these changes. Personally, I’ve run into few situations in which a longer probationary period would make a significant difference in our ability to hold individuals accountable. Shortening the notice and appeal periods mostly disadvantages the slower employee who can’t get his act together to defend himself. Otherwise, that’s not of much help, either. We still have to defend the agency’s removal no matter how fast or slow the employee is in filing an appeal.

What our leaders should be doing is looking at situations in which agencies have a problem holding employees accountable, identifying the bumps in the road, then passing legislation to smooth out those bumps, to whatever degree Congress wants them smoothed. Since the folks on The Hill seem to be too busy right now to do this sort of background work, here at FELTG we’ll show them how it’s done, in case they ever get a little spare time. While Congress may prefer the “Fire, Ready, Aim!” approach, we’re big believers in “Ready, Aim, Fire!” when it comes to changing the civil service.

Here’s a somewhat typical case with a mid-level of complexity that might give us some ideas as to what is wrong with the civil service accountability system. The agency fired the employee based on three charges:

A. Failure to perform duties, 11 specifications.
B. Failure to perform supervisory duties, 5 specifications.
C. Failure to perform duties in a timely manner, 1 specification.

As a removal is an adverse action appealable to the US Merit Systems Protection Board, the employee appealed and received a decision from an MSPB administrative judge. The judge held:

A. Failure to perform duties, 11 specifications.
• Judge: Sustained 1, dismissed 10 specifications.
B. Failure to perform supervisory duties, 5 specifications.
• Judge: Sustained 0, dismissed all 5 specifications and thereby the charge.
C. Failure to perform duties in a timely manner, 1 specification.
• Judge: Sustained the 1 specification.

Given that the judge sustained only 2 of the original 3 charges, and only 2 of the original 17 specifications, he found removal to be too severe and mitigated the termination to a demotion.

On subsequent appeal to the three Presidentially-appointed Board members, the Board agreed with the judge: two out of three charges affirmed, and mitigation of the removal to a demotion.

On subsequent appeal to the Federal Circuit Court of Appeals, the court affirmed only one of the two charges sustained by the Board. Therefore, it remanded the case to the Board to reconsider an appropriate penalty. There, the case will rest indefinitely because the Board now lacks enough members to issue decisions due to two unfilled member vacancies. Mott v. DVA, No. 2017-1222 (January 26, 2018).

Let’s dissect the decisions made in this case and see if we can pick up any hints as to what’s wrong with the civil service accountability system.

1. The length of time involved here and the expense to the government and the employee to get a resolution of this matter is horrendous. The employee was fired in November 2013. As of today, the eventual resolution of the case remains undecided for over four years, with it likely being a total of FIVE YEARS before a reconstituted Board is able to issue a final decision. Geez, Louise. It takes only three years to get through law school. In the early 16th century, Magellan circumnavigated the globe in three and a half years. World War II ended with fewer than four years of United States involvement. Who could possibly argue that in comparison, it makes sense to take longer to resolve a civil service dispute?

2. The employee was removed in November 2013. Without holding a hearing, the judge ordered her restored to a lower-grade by his initial decision in April 2016. When I was Chief Counsel to the Chairman at MSPB, judges had to issue decisions within 120 days, including any time it took to hold a hearing. Why did this no-hearing case sit with the judge for over TWO YEARS? I’ve reviewed tens of thousands of judge’s decisions in my career, and I can find nothing in this one that explains the excessive length of the delay.

3. Of the 11 specifications brought under Charge A, 7 required the employee to meet a performance standard of at least 85% utilization. The agency’s evidence shows that she actually performed at the 91% utilization level. Congress recently changed the law so that DVA needs only substantial proof level to prove a charge, not the higher-level of a preponderance of the evidence. In this case, the proof is at the ZERO level. It does no good to lower a standard if the agency cannot produce ANY evidence at all.

4. The other three Charge A specifications that were not sustained by the judge were based on a similar finding, that the agency produced ZERO evidence to support the specifications. Folks, this is not a careful balancing of “some evidence goes this way and other evidence goes that way.” If it were, DVA would benefit from the lower burden of substantial evidence. However, when there is NO PROOF to support a specification, a lower substantial-evidence burden is irrelevant.

5. Regarding the five specifications the agency put forward to support Charge B, two of them did not make it beyond a telephonic status conference. That’s how badly they were framed; they were so non-specific that they violated due process. Woof. DVA sends some of its best and brightest practitioners to our FELTG training programs where we teach that specificity in charges is absolutely essential. What happened here? Are you guys letting non-FELTG-certified practitioners draft proposed removals? Law changes aren’t going to help that.

6. Two other Charge B specifications failed because even though the misconduct was described in the proposal notice, no witness testified to support the incident, nor did agency counsel argue the specifications in closing brief. That’s ZERO evidence if you’re counting. If you have been certified by FELTG to practice MSPB law, you might remember our “colorful bubbles” diagram. We use colorful bubbles to demonstrate graphically that the agency probably will lose if its arguments and evidence change as the action moves through the redress process. Here, the evidence and arguments changed between the proposal/decision notices and the case before the judge. This is a classic mistake not likely to be made by FELTG-certified practitioners.

7. In another Charge B specification, the agency alleged that the employee had a poor relationship with a subordinate. Again, the judge found that the agency presented ZERO evidence to support this claim.

8. The employee was fired from a GS-7 position. The judge ordered her restored (on an interim basis, pending the eventual outcome of her appeal) to a lower graded position, something less than a GS-7. Yet today, a web search shows someone with the appellant’s name at her original work location holding a GS-9 position. So, we are continuing to fight about …?

9. There are three steps in our civil service redress and accountability system if a removal is
involved:

I. Judge’s decision
II. Board’s decision
III. Court’s decision

In this case, the employee was successful at Step I. Two years ago, the judge ordered her restored to employment, albeit at a lower grade level than the level from which she was fired. However, the employee believed the mitigated demotion also to be unwarranted, so she (not DVA) pressed forward to Step II the Board, and Step III the Court (and now back to the Board), attempting to have the demotion reduced to some lesser penalty or set aside altogether. Of course, that is her right to challenge a penalty she believes to be too severe. But consider the taxpayer cost of this continued litigation.

10. The judge in this case is highly respected. By my reckoning, he is the most senior judge at MSPB today. He’s been a Board administrative judge for more than 30 years. Yet, the court found that he had made a freshman’s mistake when deciding the case (considering evidence outside of the record, aka “extra-record” evidence). If we have a civil service accountability oversight system so complex that even this judge might make a critical error, something indeed is wrong with the program.

These ten items alone give us focus regarding changes that need to be made, and changes that have little value. For example, most of the statutory changes being considered on The Hill today that would expand the DVA new procedures to the rest of the executive branch will do us little good. Lowering the burden of proof from preponderance to substantial is useless if an agency presents no evidence at all to support a charge. Shortening the notice period and the appeal timelines does not help if the employee manages to file an appeal anyway. Extending the probationary period from one to two years is irrelevant to firing a longer-term career employee as was the case here.

The only worthwhile change currently in place at DVA and potentially in play for the rest of the agencies is the abolishment of the Board’s authority to reduce a penalty. Without mitigation authority in this case, once we have a single specification being upheld (with the court’s decision, we are now down to 1 out of 17 specifications), we are done. This removal would have been upheld by the judge (who affirmed 2 of 17 specifications), and there would be no court remand because there would be no need for MSPB to reconsider the penalty given that a specification failed due to judge error. That is a HUGE benefit to the agency.

If you believe that an agency should be able to fire a 15-year civil servant with no prior discipline because she failed to comply with a single supervisory instruction, you should be dancing in the streets. If you believe that our civil servants deserve a higher degree of protection, you are in for a big disappointment once the DVA procedures are enacted for your agency. The world, she is changing.

Speaking of changing, check this out. The court’s Mott decision has dropped a little bomb in our business of civil service law. Here are the well-established principles at issue:

  • •Bad employees can be fired for either unacceptable performance or misconduct.
  • If fired for misconduct, the agency’s burden of proof is “preponderance.” 5 CFR 1201.56(b)(1)(ii). The procedures are found at 5 USC Chapter 75.
  • If fired for poor performance, the agency’s burden of proof is “substantial.” 5 CFR 1201.56(b)(1)(i). The procedures are found at 5 USC Chapter 43.
  • An agency is free to take a performance-based removal using the procedures found at 5 USC Chapter 75. When doing so, it is bound to the “preponderance” burden of proof. Lovshin v. Navy, 767 F.2d 826 (Fed. Cir. 1985).

In this case, DVA chose to take the Lovshin approach with the employee, invoking 5 USC Chapter 75 procedures to fire the employee for bad performance. The judge and the Board adjudicated the decision as a Chapter 75 removal. However, here’s a direct quote from the Federal Circuit’s decision:

The VA bears the burden of proving its charge in an action based on unacceptable performance by substantial evidence. See 5 CFR 1201.56(b)(1)(i) (2015).

Oh, lordy. Where did this rule come from? Is the court trying to tell us that we need only substantial evidence if we use Chapter 75 for a performance removal? They’ve certainly never said that before. Or, is this law so confusing that the United States Court of Appeals for the Federal Circuit simply misread the facts of the case and applied the wrong statute? And their fact-checkers did not catch it before issuing the decision? Neither answer is a good answer, no matter which one is correct. They both tell us the accountability oversight procedures for the civil service need some serious tweaking to make them more usable while still being fair to the employee.

We’ve said it before here at FELTG, and we’ll say it again. What Congress needs to do is get together the smartest, most experienced people it can find who know the federal workforce. Lock them in a room, stock the place with Red Bull and pizza, and don’t let them see the light of day until they come up with a comprehensive, soup-to-nuts, reform plan for the civil service. Require this group to base their recommendations on facts, not speculation. Reconsider the philosophy of just how much protection federal workers really need balanced against the needs of agency management to run the place. Check to make certain that it is the back axel that needs repair, and don’t mess around with anything else. Do this and America will be a greater country for the effort. Wiley@FELTG.com

Another Reason They Want to Take Away the Civil Service

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By William Wiley, April 18, 2018

I hate this case.

Not because of the outcome, necessarily. No, it’s because of the path it took, a path open to every federal employee who believes his supervisor has mistreated him. As you read through the following, ask yourself: “If I was a policy maker, would I want the government’s time and money spent this way?”

  1. January 2000, the employee was demoted from the SES to a GS-15 for poor performance. Her supervisor had recommended the demotion and the agency’s Performance Review Board (PRB) for SESers agreed. Remember January 2000? We were all celebrating the millennium and waiting for our computers to crash because we were told that they could not count that high. If you had given birth to a child that month, he’d be heading off to college this year, breaking your heart and your bank account, all at the same time. The Clinton years were almost over (or so we thought).
  2. February 2000, the employee filed an EEO complaint alleging that the demotion was sex discrimination. Another SESer, a male, had also been recommended for demotion at the same time, but was not demoted because the PRB concluded that he was not informed of a critical element of his position.
  3. February 2007 (keep up here, folks; these dates can be withering), the agency concluded its internal investigation and issued a “final agency decision” upholding the demotion. Remember that kid you had back in 2000? He’s in the second grade. After this, the employee appealed the agency’s decision to EEOC.
  4. August 2013, the employee’s case went to a jury in a federal district court and your son or daughter has entered the Terrible Teens. It’s not clear to me what happened between her filing with EEOC and her going to federal court, but one way or the other, she got there. The jury found the agency to be liable for sex discrimination, reasoning that its evidence that it would have demoted the employee even if she were a man was not persuasive. The jury awarded her $100,000 in damages plus a retroactive promotion back into the SES, with what I assume would be accompanied by back pay with interest and attorney’s fees and costs.
  5. January 2018, the district court judge denied the agency’s motion to set aside the jury’s verdict as a matter of law, thereby affirming the jury’s finding of sex discrimination. That might be good information for your now-adult child as he or she heads off to the university, to give her a good reason get a degree in civil rights law.

According to the court, there were two grounds on which the jury appears to have disbelieved the agency’s evidence:

  • The employee had rebuttable argument for each performance deficiency the agency identified. The jury was free to believe either the employee or the agency.
  • Remember that male member of the SES who was recommended for demotion at the same time as the employee, but who was not demoted because the PRB believed his argument that he was unaware which of his performance elements was critical rather than non-critical (a legally significant distinction)? The jury was free not to believe him.

For what it’s worth, there still are two remaining levels of review of this case in federal court: the DC Circuit Court of Appeals and the US Supreme Court. If the agency and DoJ choose to press this case forward, we may have even more decisions to consider.

Ignoring that possibility for a moment, just consider what you see above. Without taking any position on the righteousness or wrongness of the sex-discrimination outcome, is this really how we want our government to work? The fundamental issue here was the routine evaluation of this individual’s performance. As an SESer, one would imagine that there’s a relatively high degree of subjectivity in the performance of a senior manager at that level. Before the case got to a jury, think of all the government officials who were involved in making the decision that the demotion was warranted: at the employing agency, at EEOC, and at DoJ. Think of the different types of individuals involved in reaffirming the demotion: senior line managers, coworkers at the SES level (PRB), perhaps political appointees, attorneys, civil rights specialists. Were all those people wrong about this case?

Well, according to the jury, yes. Banks v. Agriculture, U.S. District Court, District of Columbia, 07-cv-01807 (APM) (February 22, 2018).

If the jury is correct, that this lady was mistreated because of her sex, I feel terrible for her. Not only is that simply unjust in our society, it also breaks federal laws in place since at least 1964. At the same time, I feel terrible for our civil service system, that decisions like this – right or wrong – have to go through 18 years of review to get even close to closure.

Congress is so fed up with drawn-out outcomes like this that some members are considering abolishing the civil service protections altogether. Maybe employment at-will should be the new way we try to run an efficient government. At the beginning of this article, we asked you to think of yourself as a policy maker for a moment. If you actually could make a policy to replace the one that allowed the above to happen, what would it be?

Operators are standing by: 202-456-1111. Wiley@FELTG.com

We Bet You Never Thought of Doing This Simple Thing

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By William Wiley, April 10, 2018

Last week, we encouraged you to think outside the box a bit when it comes to a non-disciplinary removal. We described how HHS has come up with an option called a Terminal Detail. Instead of initiating a removal action, in the right situation the supervisor will offer to fund the employee’s salary for the employee to work in a different organization for several months. That way, the new organization can try out the employee without having to pay his salary, and offer the employee a permanent position at the end of the detail if it has an opening in which he can perform. The benefit to the “losing” supervisor is that he a) doesn’t have to go through the resource-intense processing of firing the guy, b) relief is immediate, and c) the employee has to agree not to return at the end of the detail as part of the contract.

Several readers commented that this was a TERRIFIC idea and could work in their organizations to avoid removals. On the other hand, a few determined just-say-no readers thought this option to be either unwise or illegal, or both.

Wanting to provide more fodder for outside-the-box thought, here’s another “crazy” option that came to me in the dark of the night while I was lying in bed sleepless, worrying about the potential loss of our civil service due to nay-sayers. If you think that a Terminal Detail is a whack-a-doodle idea, wait until you catch a load of this one.

But, first, a couple of facts to work with:

  1. A common mistake that agencies make when firing an employee is having the Deciding Official (DO) say something in her decision memo that is different from what the proposing Official (PO, usually a subordinate to the DO) has said in his Proposal Notice. Allowing the DO to consider a fact of which the employee was not notified in the Proposal Notice is almost always a violation of due process. As a due process violation is per se harmful, the agency automatically loses, and the employee and his lawyer get a whole big bucket of money, with the employee entitled to reinstatement to the position from which he was unfairly fired. If you don’t already know that this is a HUGE problem for agencies, you need to read more MSPB reversals of removals. It may be THE most common reason we lose appeals.
  2. The Civil Service Reform Act of 1978 set up the removal procedures 40 years ago this year. Although most agencies use two officials to fire an employee – a PO and a separate, superior DO – the law has never required that two individuals be involved in deciding a misconduct removal (two are required by law, in comparison, in a performance removal). For whatever reasons, most all agencies have a policy that says that two management officials will be involved in a misconduct removal, but this has never been a legal requirement.

When teaching the basics in our famous FELTG MSPB Law Week seminar (next offered in Denver June 4-8) , we strongly suggest that a way around this problem is to a) have the PO do an extensive evaluation of the Douglas Factors as an attachment to the Proposal Notice, then b) have the DO simply adopt that analysis, assuming of course that complete adoption is actually what the DO is doing. This avoids the mistake that agencies sometimes make of having the DO complete a separate fulsome Douglas Factor analysis as part of the decision memo. Having the DO do a separate analysis is a great way to include additional facts into the case, thereby violating the employee’s due process rights, and causing reversal of the removal on appeal.

“But, Bill. What if the DO disagrees with the PO? What if the DO views the Douglas Factors differently from the PO or knows things about the employee that he wants to rely on in making the removal decision, but are not in the PO’s Douglas factor worksheet? What then?”

For years, our response has been to take the safety route. Have the DO send the employee a memo that says how he views things differently, and then give the employee at least seven days (or whatever your local CBA or policy says) to provide a response to the new information. Legally, this is nice and tidy, but practically, it may delay the removal beyond 30 days. And nobody wants to delay a removal decision more than necessary.

And then it dawned on me (literally “dawned” as the sun was starting to rise over my San Francisco home as the idea came to me a couple of mornings ago):

Why not have the PO and the DO collaborate on the Douglas Factor assessment attached to the Proposal Notice prior to it being given to the employee?

We’ve known for 40 years that it is not a violation of due process to have the same individual be both the PO and the DO. We know that the heart of due process is that the agency makes known to the employee everything that’s being thought about regarding the proposal to remove him. And we know that MSPB does not have a problem with the DO being involved in the proceedings leading up to the proposed removal. Lange v. DoJ, 119 MSPR 625 (2013). Why not simply have this pre-Notice joint-drafting of the Douglas Factor analysis done by the DO and PO, and of course with notice to the employee of its joint authorship? We satisfy due process while simultaneously reducing the likelihood that the DO will want to consider something not in the Proposal Notice. Yes, it takes more time up front to get a document created by two authors rather than one, but the pay-off is significant: a reduction in post-Notice time and a better chance that we will not inadvertently violate the employee’s due process rights.

Congress, OPM, and the White House are looking at ways to change the civil service laws. Smart usage of the laws we already have will reduce the need for drastic change. Wiley@FELTG.com

Another Way to Avoid Nasty Litigation

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By William Wiley, April 3, 2018

Experienced practitioners know that it’s almost always better to avoid litigating a termination case than going to a hearing and defending a removal action. That’s because a) litigation is time- consuming and expensive, and b) even if you have a good case, there’s always a chance you will lose. Last year, agencies lost about one-in-four to one-in-five removals that were appealed to MSPB. Discovery before the Board can involve thousands of pages of documents and several tedious depositions of senior managers. Why incur that risk and expense if you can get rid of the guy otherwise?

The term “discipline alternatives” was derived a few years ago to describe this class of options for supervisors who have a problem employee. The most common one of these is a “Last Rites” meeting in which we try to talk the employee into voluntarily quitting in exchange for some benefit. “Hey, Bill, if you’ll quit, I’ll let you work at home without any real duties other than finding yourself another job. Let’s say two months, and your dress code is your pajamas.” Write it up, get the employee to sign a contract promising to be gone, and you’ve done yourself and the country a great favor.

Another option is the similarly-named “Last Chance” agreement. In this case, you agree not to implement a decision to fire someone if he’ll promise to be good for the next couple of years. If he survives the agreement period, the removal goes away. If he screws up before the period is over, it’s an immediate removal with no appeal rights and no Douglas factors. If either of these “Lasts” is new to you, sign up for our training. Agencies that know what they’re doing have been using these for decades to avoid litigation and still remove bad employees from the federal workplace.

These two options are well-established in the case law. Easy to research, easy to see how effective they can be. However, not long ago, we ran across an option being used at HHS that we think can be very useful, in the right situation, and that doesn’t lend itself to case law research. As everybody knows, the sub-agencies within HHS – FDA, NIH, and CDC, among others – do a lot of research. That means that there are a lot of employees who work in labs and on projects doing specialized technical work for extended periods of time. When it develops that an employee is no longer meeting performance standards for a critical element, HHS management uses PIPs (now known as ODAPs for “Opportunity to Demonstrate Acceptable Performance” to emphasize that it is not an “improvement” period”), last rites and last chance agreements, just like everybody else.

However, they’ve also come up with another option that in the right situation is well worth consideration. It’s called a “Terminal Detail.” Employees in a research environment sometimes just don’t keep up with the science in a particular lab and are therefore not performing acceptably. Otherwise, they have decent work habits and might fit in somewhere else. As an alternative to implementing formal procedures, the supervisor explains the situation to the employee and invites the employee to find another workplace in the organization that could use some help and is willing to try out the employee. If the employee finds an alternative position, the current supervisor offers to continue to pay the employee’s salary from his organizational funding for six months or so while the individual works in the other component. The receiving organization gets free labor for the period and also gets to evaluate whether it has a permanent place for the employee long-term.

If the employee works out in the new location, and is picked up as a permanent employee, the personnel action is a reassignment, and everybody wins. However, the deal that’s struck requires the employee to understand that if he does not have other employment by the end of the Terminal Detail, he must leave voluntarily. He cannot return to his original job, and either quits or retires, whichever option is available to him. The implementing agreement waives the individual’s rights to file an appeal, grievance, or complaint regarding anything that leads up to the detail, so there’s no adjudication related to the action.

The price to the supervisor is six months (or so) salary, so this is not a freebie approach. However, many supervisors who have been through a removal action and appeal to MSPB would say that it is a reasonable price to pay to have the employee out of the workplace immediately, with no chance of being reversed on appeal. As for the employee, he is faced with either an involuntary removal effective within 30 days or so, or the alternative of trying to prove himself to another supervisor doing different work. The choice is not right for everyone, but when it’s a good fit, it can be life-changing for the better.

Keep your options open. Stay flexible and creative. Yes, our business is firing people. However, if you can use other options to get you to the same place without all the lawyer-stuff, you almost always come out ahead in the end. Wiley@FELTG.com

The Backwards Approach to Civil Service Law

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By William Wiley, March 27, 2018

In one week, I heard some variation of this unfortunate concept three times:

What gives you the authority to do that?

An alternative of this is, “Where does it say we can do that?” I hear this phrase from attorneys, HR specialists, and supervisors, each of whom is trying to decide what to do in a particular employment law situation. For example, in one case an agency used one of its airplanes to observe the backyard of an employee who was suspected of growing marijuana there. “What gives the agency the authority to do that?” In another, the supervisor had contacted the local police and asked them to do a “welfare check” to see if a missing employee was injured or otherwise in trouble. “How do we have the right to call the police?” In another, a supervisor thought he saw a subordinate looking at porn on a personal laptop. When confronted, the employee said he was working on agency business. “Where is the agency policy that allows the supervisor to tell the employee to show him the computer screen?”

Folks, that’s exactly the kind of backwards, bureaucratic mindset that freezes supervisors and makes the agency appear to be impotent relative to holding employees accountable. The question should not be, “Where does it say we can do that?”, but rather, “Where does it say we cannot do that?”

Here’s how we know that this is the better approach:

  • 5 USC 301-302 gives the President the authority to make personnel decisions relative to the Executive Branch and to delegate that authority to subordinate management officials. Therefore, agency supervisors have the authority to run their workplace on behalf of the President.
  • Supervisors can take lawful actions with employees as long as there is a nexus (e.g., a business-related reason) for the action. The reverse, of course, is that if there is no nexus, the supervisor cannot take the action. The Lloyd-Lafollette Act of 1912 called this basing the action on the “efficiency of the service.”
  • Therefore, unless there is a law that says a supervisor cannot do something, as long as the motivation for the action is related to a bona fide business reason, the supervisor can do it.

Does an agency have a business reason for determining whether its employees are violating its marijuana policy? Sure, that’s why they have a policy, to ensure that employees are not violating federal law. How about a missing employee? Does a supervisor have a business reason for being concerned about the safety of an employee who does not show up for work? Of course. As members of society we all have that concern. As an employer, that concern is enhanced by the need to have someone at work doing the job. How about porn in a federal workplace on government time? Can a supervisor take steps to make sure that doesn’t occur? Lordy, I would hope so. If not, we have a drastically different federal workplace than the one our citizens expect (and that I used to be part of).

Of course, there are legal limits to what we can do. If that welfare check was motivated by a desire to harass an employee who had filed a bunch of EEO complaints, that’s illegal. The marijuana fly-over and the laptop viewing cannot run afoul of the Constitutional 4th amendment protections against the government conducting an “unreasonable search.” (They do not, by the way, as the fly-over is a plain-view observation and the personal laptop is fair game for the supervisor because the employee claimed to be doing government work on it.)

The civil service is routinely beat up by politicians and the media for letting bad things happen without our doing anything about it; e.g., workplace sexual harassment, employees on months of paid leave, and inefficient/rude service providers. We even had an OPM director years ago who complained about poorly dressed federal employees, saying that the government does not have a dress code; therefore, she could do nothing about workplace slovenliness. OF COURSE, we have a dress code. It’s what the supervisor says is appropriate for the work being assigned.

The attitude that something specific has to give us authority to act before we can act contributes mightily to the viewpoint that our civil service is not working. Instead of looking for the specific authority to do something, look to see if there’s something that says you cannot. In my experience, you will hardly ever find anything. Wiley@FELTG.com

Never Send to Know for Whom the Bell Tolls, Poopsie …

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By William Wiley, March 20, 2018

Oh, there’s just so much in the mainstream media these days about our business of civil service law. Sometimes we can go months without an article being published for general consumption about federal employees and their rights. These days, we’re everywhere. And if you care about your own personal future, maybe you’d better read some of those articles verrrry closely. For example:

Andrew McCabe. As most of the world must know by now, McCabe was the deputy director of the FBI until he was fired last week, just over 24 hours before his birthday that would have made him old enough to receive a law enforcement officer enhanced retirement from the federal government. If you’re like most federal employees, you probably have the date marked somewhere that is the earliest date you will have both age and years of service to claim a life-long pension for your work, including till-death-guaranteed access to reasonable health insurance, a significant rarity in the United States these days. Well, go dig up that calendar. Look at the date you have calculated. Now think what the rest of your life would be like after that, if the day before that date, you were fired. Based just on your boss’s opinion, without an appeal right to a neutral institution like the US Merit Systems Protection Board.

For our purposes, it doesn’t really matter what McCabe did that resulted in his removal. Good guy or bad guy, until last week, he was a career federal employee, just like most of you readers. He wasn’t some political flake, appointed from the private sector for some political reason, with no real commitment to the civil service and no real expectation of continued employment. No, he was an individual just like you, who filled out an SF-171 to get his first job, competed for promotions, and underwent the annual embarrassment of a stupid performance appraisal that meant essentially nothing, but which empowered him to continue to do his job of providing service to the American people. He may have made mistakes toward the end of his career, but nobody died because of them. From what I read in the media, he arguably might simply have been mistaken about some of the things he allegedly did. Love him or hate him (and we take no FELTG position on your emotions), he was just like you in the sense of trying to do a decent job for a quarter of a century with the expectation of a government retirement annuity at the end of things, and now he doesn’t have that. By a day. With no appeal. Like it or not, this is how the FBI’s system works.

Department of Education and AFGE.  Unless you’re an inside-the-Beltway, labor-law-weenie (as we are proud to be at FELTG), this one might have slipped below your radar. Education and AFGE had been slogging along trying to negotiate a new labor-management agreement for about a year, making little if any progress. Nothing too unusual there. Some federal agencies and unions spend YEARS negotiating a new contract. So, the agency negotiators notified the union that they had a contract that they planned to implement if negotiations did not progress further, gave the union a time frame to respond, and when (according to the agency) there was no response, management implemented its version of a collective bargaining agreement.

Talk about hitting the fan. I’m still cleaning off the inside of my labor law news feed. All that cool stuff in the old labor agreement was gone: employee “rights,” including those addressing workplace health and safety, telework, and alternative work schedules, provisions on workplace discrimination, performance appraisals, compensation, child care and training were all deleted and replaced with nothing. If union representatives now want official time to represent employees in grievances and Weingarten meetings, they can do it on LWOP, not paid time as in the past. Need a union office space to discuss things or send an email? Better find a quiet corner in a hallway from which you can access a Wi-Fi hotspot on your personal smart phone.

Every union official I read about complained that the agency had somehow shoved the new contract down their throats, taking away employee and union rights Congress had intended. However, every practitioner who has attended FETG’s fabulous FLRA Law Week seminar who read about this scenario knew that they were seeing the Civil Service Reform Act playing out just the way it was written back in 1978:

  1. Management notifies the Union of an intended change to employee working conditions.
  2. Upon demand by the Union, Management enters into bargaining regarding those parts of the change that are negotiable.
  3. If Management and the Union cannot reach agreement (i.e., reach an impasse), Management notifies the Union of its final offer.
  4. If the Union does not respond by initiating the impasse resolution procedures provided for by law, Management has the right to implement the change without further bargaining.

We may think it’s terrible that the employees at Education lost the flexibility of alternative work schedules or that the AFGE reps now lose pay whenever they perform most representational duties. But those things are not Congressionally-mandated rights; they are the fruits of collective bargaining, sometimes won and sometimes lost. There may be good arguments that the union did not waive its right to the impasses procedures. If so, those arguments will be resolved through the unfair labor practice charge that AFGE has filed against Education. Like it or not, this is how the labor negotiations system works.

DVA.  Last summer, Congress created a law that allows DVA to fire employees with no more proof than a grain more than a scintilla (i.e., substantial evidence). In addition, unlike most all other agencies, DVA no longer has to defend deciding to fire someone rather than just suspending or reprimanding them. If the supervisor can prove that the employee engaged in a single act of misconduct (e.g., arrived tardy one day), he can be fired, even if he has worked for the government 30 years with no prior discipline and is an otherwise outstanding employee. In the language of civil service law, that means that there’s no penalty mitigation authority at MSPB or in arbitration and thereby no Douglas Factor analysis required.

So, what was in the papers last week? Congressmen on both sides exclaiming that they didn’t know that DVA would use these new authorities to remove housekeepers, veterans, and poor performers without necessarily giving them a chance to get better. Well, Congress. If you didn’t want DVA to do this stuff, why did you pass a law that specifically allows for them to do it? Why did the President say in his State of the Union address that this new DVA firing procedure should be applied to the entire federal government? Like it or not, this is how the DVA system that you created works.

Depending on your view of the federal workplace, you may be thinking that these are wonderful aspects of the civil service; that career individuals can be fired easily and that unions have to bargain rather than be provided benefits by legal right. Here at FELTG, we’re not trying to push your civil service protections in one direction or the other. That’s an effort worthy of a much higher pay grade. What we are suggesting is that before you break out the champagne, go look in the mirror. Mentally age yourself to what you think you will look like when that retirement date on your calendar finally arrives. Now picture that person standing in line to apply to work at Home Depot or CVS, two companies who have special programs to hire old coots individuals approaching their “Golden Years.” Some people might think that a cushy civil service job is for life, but now you know better. Wiley@FELTG.com