I’ve been reviewing all the Board’s decisions for FY-2016 in preparation for our upcoming Updates webinar on Thursday, and I notice that the trend from past years continues. When looking at cases that agencies have lost, I lump the reasons for the losses into one of two groups:
- Proof Losses – In these cases, the Board set aside a removal because it disagreed with the Deciding Official’s evaluation of the Douglas Factors or the agency’s presentation of a preponderance of the evidence to support its removal charges. I don’t see a lot of “fault” in these losses because an agency simply cannot predict what evidence the Board will find to be compelling. You do your best, but you just never know.
- Practitioner Losses – In these cases, the Board set aside a removal because the agency representatives – lawyer or Human Resources specialists or both – failed to grasp a fundamental rule of MSPB practice. Examples of decisions in this group would be due process violations, failing to follow procedures, and improper charge framing.
As in previous years in which we have done this analysis, Practitioner Losses outpaced Proof Losses two-to-one. For every three cases agencies lost in FY 2016, one was because of a lack of enough proof, and two were because agency lawyers/HR specialists did not know Board law. And I mean BASIC Board law.
This situation is bad for America. In two-thirds of the FY 2016 cases that were lost, an employee was denied some right guaranteed by MSPB precedence. And the price for these rights-denials is often back pay with interest, attorney fees, and reinstatement. There is no joy in this situation for anyone: union, management, or private citizen.
From the pages of this newsletter, for nearly a decade, we have beseeched OPM to do something about this government failing. We have argued for OPM-approved training, testing, and certification of agency practitioners. We got nothing. We have pleaded with agency top leadership to mandate training for agency representatives. Not a peep. We’ve lobbied Congress to pass laws that would require that government employees who do this work know government employment law. Not even a thank-you for the sample textbooks we send them.
Well, maybe we’ve been barking up the wrong organizational tree.
I never claim to know much law beyond the four corners of federal employment law. But it is my understanding that to practice law in certain jurisdictions, an attorney has to be admitted to practice. For example, my fancy admission to the practice of law in California and before the US Supreme Court does me little good if I try to appear in some local parish courthouse in Louisiana. Did you see My Cousin Vinny? Well, that would be me, except I’d never get into the courtroom (and Marisa Tomei would never give me the time of day). Courts have their standards and they don’t want some doofus lawyer from out of town making a fool of himself before one of their judges.
So what if MSPB were to establish a standard of practice for lawyers and non-lawyers alike who represent agencies or clients in appeals to the Board? What if it required testing for anyone who wants to either appear on behalf of an agency or be entitled to attorney fees in a successful appeal of a removal? Maybe it could certify training groups to present programs that would be an alternative to testing, sort of the way that bar associations screen and approve organizations to provide continuing legal education.
There would need to be some exceptions, of course; perhaps some grandfathering in of practitioners who have represented in a certain minimum number of Board appeals. And of course, an employee can always represent herself. But a well-trained, recognized group of employment law practitioners, on both sides of the hearing room, would certainly make for a better government. Hey, Board! You’re in charge of protecting the merit systems. How about requiring that those who implement the merit systems know what in the devil they are doing.
Because these latest loss statistics say that some of them don’t. [email protected]