Dear Mr./Ms New President,
Sometimes I don’t know whether to scream or cry.
Last week was the 38th anniversary of the passage of the Civil Service Reform Act of 1978. In 1984, MPSB held that under the “new” Civil Service Reform Act, although it could mitigate unreasonable removals for misconduct taken under 5 USC Chapter 75, it had no similar authority to mitigate removals for unacceptable performance taken under 5 USC Chapter 43. Thus, one of the great gifts of the Reform Act came into existence: the ability to fire an unacceptable performer who failed a PIP (performance improvement plan) without having to defend not taking some lesser action, such as a demotion or reassignment. From the earliest days, we learned that we had to include a Douglas Factor analysis if we fired someone for misconduct, but not if we fired him for failing a PIP. Lisiecki v. Federal Home Loan Bank Board, 23 MSPR 633 (1984).
Some 30 years later, DVA fired a guy for failing a PIP, entitled the removal “Unsuccessful Performance,” and referenced 5 USC Chapter 43. However, it included in its appeal submissions a Douglas Factor analysis, which the Deciding Official referred to in justifying not taking a lesser action. MSPB reasoned that since the agency included a Douglas Factor analysis, it must REALLY have been taking a misconduct removal under 5 USC Chapter 75 regardless of its claims otherwise, required it to justify its penalty and applied the higher preponderance of evidence standard required in misconduct removals (rather than the lower “substantial evidence” burden of proof called for in performance actions).
In 1217, King John signed the second Magna Carta, thereby establishing for the first time in countries that base their laws on those of England (as we do here in the Colonies), that the government will treat its citizens fairly before taking away their property. In a subsequent Magna Carta in 1354, English law even came up with a name for this new requirement for fairness: due process. We brought due process into our country when our fore-parents drafted the Constitution. The Federal Circuit applied it in the world of federal employment law 30 years ago when it said that Deciding Officials violate due process if they rely on information unknown to the employee when deciding to fire the guy. Sullivan v. Navy, 720 F.2d 1266 (Fed. Cir. 1983).
Some 800 years later, in 2013, a DVA Deciding Official (DO) listened to recordings of inappropriate customer phone calls involving the proposed-removal-employee. The DO then relied on those calls when deciding to fire the employee for taking too long on those calls. This little due process violation is what we in the business call a “two-fer”. Not only did the DO violate Sullivan by relying on secret information, she also upheld a charge other than the one that was brought; e.g., Inappropriate Calls vs. Too-Long Calls. Walls v. DVA, DE-0752-13-0278-I-1 (September 7, 2016)(NP)
Our friends at DVA have been in the media a lot the past year or two, for several reasons:
- A whistleblower revealed what has been described as a wide-spread practice of juggling the appointment books so that it appeared that DVA was providing prompt medical care to our vets when in fact a number of them were waiting months and years for an appointment.
- Congress brought pressure on DVA top leadership to punish those managers responsible for gaming the appointment system and thereby harming our vets.
- In response, political appointees at DVA stated that it was hard to discipline bad federal employees because of the onerous civil service protections. In support of this claim, it pointed to two or three instances in which DVA had indeed disciplined senior managers, only to have those actions set aside on appeal by the mean old Merit Systems Protection Board.
- In response to that response, Congress changed the law to reduce the period of time an SES employee at DVA has to defend himself before he can be fired (from 30 days to 7), and foreclosed review of the judge’s decision by the three politically-appointed members of the Board at MSPB. As of this writing, similar legislation has been proposed (or maybe even enacted; I lose track with end-of-year continuing resolutions) to extend these reduced protections to most all DVA employees.
Oh, the misplaced effort. If Walls is an example of why agencies are losing cases before MSPB (and it is), the fault lies not in the law, the fault lies in the lack of knowledge of the laws that control the procedures we use in the federal workplace. Congress can reduce the darned notice period down to 15 minutes, and DVA is still going to lose cases if it hasn’t learned to apply legal principles that have been around since the Middle Ages (when we burned witches at the stake, all educated people communicated in Latin, and the top leadership positions for women in society were as either an abbess or a queen regnant).
There simply is no excuse for the procedural errors that were made in this case. FELTG phones are open every workday of the year. Our online registration is available 24/7. We work our trainers so hard that they beg for mercy (and an increased per diem allowance to cover their sizeable bar bills). If you are in a leadership position within your agency, and you’re tired of losing cases on appeal, go look in the mirror. The odds are awfully good that the problem is not in the civil service protections in law. If your lawyers and human resources professionals do not know how to handle these cases, the problem is in you.
With all due respect. [email protected]
