By William Wiley, May 17, 2017
Here’s how accountability works in the federal civil service. Bad employees get fired. They appeal to the US Merit Systems Protection Board. The Board assigns a judge to collect all the evidence, conduct a hearing, and rule on whether the employee stays fired or gets his job back. When that ruling is challenged, the Board members themselves review the judge’s initial decision, thereby becoming the final arbiters of who gets fired from government for poor performance or misconduct, and who gets reinstated with back pay and attorney fees.
MSPB’s headquarters workload has been relatively steady (save for the occasional Stupid Sequestration Furlough appeals). Every workday, the members receive five to six appeals challenging a judge’s decision. To stay even with this intake, each member must review the record evidence, consider a judge’s rationale, then vote to affirm or modify the initial decision in five to six cases each day. I worked at MSPB headquarters for nine years. Five to six decisions a day is a manageable workload for a Board member to accomplish.
There are three members’ seats on the Board. Each is designed to be occupied by a political appointee, nominated by the President and confirmed by the Senate, for a non-renewable term of up to seven years. Final Board decisions are by majority vote. Even when there is a vacancy at MSPB, the Board can still operate with two members. By accepted rule, two is a viable voting quorum of a three-member body such as is MSPB.
As of January 7, due to the then-Chairman’s premature resignation and another member’s term expiration, the Board has been reduced to a single member. Two seats remain vacant. MSPB cannot issue final decisions regarding the appeals of judges’ decisions with only one Presidential appointee member. It cannot affirm the judge, set aside the judge, or dismiss the appeals without any action at all. Some might compare a one-membered Board to a black hole in space, an entity in which once matter crosses the event horizon, it disappears forever. Others might prefer the analogy of a roach motel, where the guests check in, but they never check out. As for me, I’m most comfortable thinking of a non-function Board as the clog in the plumbing, not letting anything go out while backing up a smelly mess into the living room of federal employment.
Every day that the Board sits impotent, another five or so former-employees are added to the heap, denied resolution of their appeals. Perhaps they should be reinstated with back pay. Perhaps their removals should be affirmed so that they can either get on with their lives, or pursue even more challenges in federal court. The individual appellant suffers as well as do his family members.
The former employing agencies also are disadvantaged each day the Board is powerless. Back pay with interest continues to accumulate. Some agencies will not replace a fired employee until the Board appeal is finally resolved. Positions sit vacant or are filled on only a temporary basis until at least two Board members agree on what constitutes a proper outcome.
Compared to health care, tax reform, and FBI directors, this is the tiniest of government problems. Fortunately, it requires the tiniest of actions to fix it. The White House needs only to submit to the Senate a name of someone willing and competent to serve as an MSPB Board member. Go look in the mirror. If you’re a regular reader of the FELTG newsletter, you’re probably more qualified on Day One than were at least a couple of individuals who actually served as Board members in the past. You don’t need to be a lawyer. Heck, you don’t even need a college degree. Take your common sense, combine it with federal workplace experience, and if the President picks you, you can have your picture hung on the wall in MSPB’s front-office conference room right there along with the other 20 members who have served in history.
It breaks our little FELTG hearts that something so hurtful to the civil service could be fixed with something so easy to do. We understand that there are priorities in a new administration. We certainly defer to the greater minds at the higher pay grades when it comes to running the government. And at the same time, we hope that someone in a position to do something will see the service that will be done for America by clearing the pipes in the civil service accountability and oversight system, and cleaning up this mess before it gets so big that it cannot be easily undone.
To help us stay focused on this problem, every now and then in one of our periodic FELTG publications, we’ll print an update to the backlog situation using the graphic below.
|Backlog Cases Sitting at MSPB due to Lack of another Member as of Today
When you see it, think of two things:
- This number would be zero if we had a quorum on the Board, and
- The poor soul who finally gets appointed to one of those vacant seats is going to need a helluva big in-basket.