Let’s Embrace Change

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By Dan Gephart, July 9, 2018

Hello FELTG Nation!

Do you mind if we talk about change?

As I write this, I’m gazing at a For Sale sign that looks oddly out of place on my sun burnt front lawn. This concrete box I sit in has sheltered numerous Gephart humans and four-legged creatures since the new millennium. I’m not just leaving this house, though. I’ll be fleeing the Sunshine State, which has been home since my two adult sons were toddlers, or as we affectionately call them here “gator brunch.”

And that’s not even the biggest change. This week I started a new job for the first time in more than 23 years. Twenty-three years! That was so long ago, Al Gore was still reinventing government and smashing ashtrays.

But I don’t need to tell you about change.

You live with change every day.

I know. As the former long-time program chair of a certain federal training conference that I will not name (rhymes with FDR), I saw how change, along with fear of the unknown, drives people to training sessions.

Change leads to overcrowded classes about transgender employees. It packs rooms of HR professionals trying to figure out how to stop sexual harassment claims. It leaves people willfully standing for three-hour workshops to hear the latest guidance on how to handle reasonable accommodation requests for telework.

And I haven’t even mentioned the concern and confusion surrounding the president’s recent civil service-related Executive Orders or plans to reorganize the federal government.

Change can be stressful, unpredictable, and downright scary.

But change can also be, and often is, good.

Agencies should be more inclusive to all employees, and that means educating yourself about transgender workplace issues. We must hold accountable those managers and employees who practice harassment of any type. You’d better know what to do when an employee asks you for a reasonable accommodation.

These new executive orders, at least the ones dealing with performance, actually provide a great opportunity to more efficiently handle poor performers.

And if you think requests for telework are going to decrease anytime soon, I have some Florida swampland to sell you. No, really, I do. It’s a three-bedroom in a nice family neighborhood. Competitively priced. Give me a call.

Embrace that fear of the unknown. Lean into it. As someone much smarter than I said: Change is the only constant in life.

Change has landed me here at FELTG. This is a dream come true. I couldn’t be happier and more excited to work with Bill Wiley and Deb Hopkins, and the uber-talented group of FELTG instructors, including legends Barbara Haga and Ernie Hadley. These fine people work tirelessly to improve the quality and efficiency of the federal workplace. I don’t use the word tirelessly lightly. I’ve seen their schedules.

I also appreciate the chance to continue working with all of you – the faithful civil servants who loyally serve the taxpayers despite sometimes undesirable working conditions and constantly shifting political agendas, all the while ducking the uninformed insults regularly hurled your way.

Let’s step into this change together. It may be challenging, but nobody said we couldn’t have fun while navigating it. [email protected]

EOs: Effective Now or Effective Later?

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By William Wiley, June 26, 2018

So much has been left to interpretation in the three Executive Orders issued by The White House on May 25. That’s just the way it is when something is issued that is as significant and specific as are the changes mandated by the President. Here at FELTG, we’ve been doing a lot of thinking and responding to questions and comments from the FELTG-Nation regarding the meaning of these things. We’ve even resorted to Deep Thoughts to try to figure them out, and deep thinking is not necessarily our strongest suit. With that said, here’s where our evolving EO-interpretation is today:

Effective Date:  There’s a bedrock principle in our civil society that bills become laws the moment they are signed by the President (or a Presidential veto is overridden on Capitol Hill). That protects our citizens from the retroactive application of a law to conduct that was legal prior to the law, and binds us all to the requirements of the law from the date of signing forward. The only main exception to this rule is if the law itself sets an effective date somewhere in the future. The Civil Service Reform Act of 1978 is a relevant example. Although it was signed by President Carter in October 1978, it was written so that it was not effective until 90 days later.

There’s no reason that this timing principle would not apply to an Executive Order. These three EOs were signed by the President on May 25, 2018. They have been effective since that date as there was nothing in the EOs that set a later overall date. Therefore, if you have been giving unacceptably performing employees generally more than 30 days to demonstrate whether they can perform in an acceptable manner since that date (i.e., you issued a 90-day PIP), you have violated the accountability EO.

“But, Bill. Doesn’t the EO say something about 45 days? Don’t we have until July 9 to put all of this into place?” Well, not exactly. The EO says that agencies have until July 9 to adapt their discipline and performance instructions to the requirements of the accountability EO. To my read, that doesn’t mean that agencies are not bound before then. It just gives you six weeks to put the requirements into writing.

Mandates or Objectives:  I’ve heard a number of representatives on both the management and the union side say that the EOs simply lay out bargaining objectives, that there really are no guarantees that the requirements of the EOs will survive the negotiation process and become part of a collective bargaining agreement (CBA). I’ve even had a couple of interesting discussions with practitioners who take the position that the EOs mandate that nothing in the Orders abrogates current CBA provisions that are contra to the EOs; therefore, they cannot be effective immediately.

If this objectives-only approach is taken by an agency, many of the requirements of the EO may not be implemented for years, maybe never if the current CBA is not renegotiated, but is simply extended into the future. Considering the EOs’ requirements to be opening positions for an agency to take in negotiations, rather than policies to be implemented now, prevents the swift implementation of the President’s instructions.

As we’ve spoken about in our webinars analyzing the EOs (there’s still space in tomorrow’s session), in our opinion there is a defensible argument that the mandates of the EOs are effective now and need not be subjected to negotiations. It is black letter law in our business that a CBA can not contain provisions inconsistent with a law or a government-wide regulation. Almost 30 years ago, FLRA held that an EO carries the same weight as a law for the purpose of collective bargaining. See NTEU & Army, 30 FLRA 1046 (1988) (Holding that shalls were “legal” mandates).

If an agency were to take this approach, the Big Brains over in the labor relations office should be combing through the EOs looking for mandates (e.g., the shalls) and separating them from the simply desirables (e.g., the endeavors). For every mandate found, the agency should notify the union that you are immediately changing your policy to conform to a new law-like EO, and are accepting any impact and implementation proposals the union might choose to make. As the EOs say, “Nothing in this EO impairs the authority granted by law to an agency head.” By law, an agency head has the authority to implement a law without negotiating the substance of the law with the union.

Enforceability:  Many of you wonderful readers have some Big Decisions to make over the next few days. What do the EOs really say? Is that comma important, or not? Do we really want to upset the union by unilaterally implementing the mandates in the three EOs? What if we resist the EOs and choose not to implement them, for whatever reasons? Who’s going to care?

Oh, I don’t know. Maybe the PRESIDENT OF THE UNITED STATES? Maybe whoever it is who heads up your agency, who works for the President? Please, oh please, invite us to the meeting in which you tell your political overlords that you advise keeping the union officials on full official time out of fear that the union might file an unfair labor practice charge if you unilaterally act to implement the EO and reduce official time use. That meeting, in comparison, will make cage fighting look like an elementary school game of dodgeball.

You probably have noticed that a number of unions have filed lawsuits to prevent the implementation of these EOs. At least one union has asked a court to issue an injunction to stop EO implementation, something courts usually do only then there is the danger of immediate irreparable harm. Well, if these EOs simply laid out bargaining objectives, issues that ultimately would be resolved through the collective bargaining process, there wouldn’t be any immediate harm, would there? Maybe our friends on the union side are onto something.

EOs aren’t like laws that once they are issued become static and open to varying interpretations. These EOs express the wishes of a single President and have his signature at the bottom of each one. If you’re confused as to what they mean, just ask the President. He has a White House Counsel who speaks for him on things legal. He has a Justice Department that implements his legal wishes. He has a Director of OPM who is supposed to understand what the President wants and then implement regulations to carry out those wishes. If you have a telephone, you don’t have to guess at the answers. Call the guy who issued the darned things and ask, “Hey, what’d you mean in that Union Time EO? Are we supposed to implement that puppy immediately or just try to bargain for those restrictions?” Just be sure to phrase your question so that he can respond in 280 characters, or fewer. That will ensure you a speedy response.

So, get busy. And cancel those plans for a big July 4th holiday vacation. If you’re an agency’s employment lawyer or Human Resources specialist, you have precious little time left to do what the President has told you to do.

Or, to tell him you’re not going to do it. Whooo, doggies; I’m going to bring my first aid kit for that meeting. [email protected]

James Comey was not Insubordinate

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By William Wiley, June 19, 2018

More precisely, the 500+ page OIG report issued last week regarding possible misconduct at DoJ does not establish Comey’s “insubordination.” As everyone who has attended the FELTG MSPB Law Week seminar (next offered September 10-14 in Washington, DC) knows, charges of workplace misconduct have specific legal definitions. The various aspects of a charge definition are known as “elements” of the charge. To prove a charge like insubordination, an agency would have to prove all the following elements:

  • The willful and intentional refusal,
  • To obey an authorized order of a superior,
  • Which the superior is entitled to have obeyed.

Redfearn v. Labor, 58 MSPR 307 (1993)

The report concludes that Comey acted in an insubordinate manner when he took it upon himself to release certain information without telling his supervisor about an investigation into Hillary Clinton’s use of a non-government computer for government work. That, indeed, may have been a bad thing to do. Perhaps (and here at FELTG, we have no dog in this fight) what he did demonstrates poor judgment. However, I can find nothing that says his superior, Attorney General Lynch, had ordered him not to do that. In fact, the executive summary of the report states just the opposite:

While Lynch asked Comey what the subject matter of the statement was going to be (Comey told her in response it would be about the Midyear investigation), she did not ask him to tell her what he intended to say about the Midyear investigation. We found that Lynch, having decided not to recuse herself, retained authority over both the final prosecution decision and the Department’s management of the Midyear investigation. As such, we believe she should have instructed Comey to tell her what he intended to say beforehand and should have discussed it with Comey.

The report concludes that Comey’s supervisor made a mistake by not giving him an authorized order to tell her what he was about to do. She most likely would have been entitled to have that order obeyed had she given the order. However, she did not. Based on these facts alone, Comey cannot be held to be insubordinate for failing to obey an order that his superior did not give.

You, our beloved reader, might be sitting there thinking, “Oh, Bill. You’ve gone off the deep end again. This is being very picky about a trivial hair splitting.” Well, Smarty Pants, just try running this series of events past judges at MSPB and see how quickly they set aside your charge of Insubordination. You don’t got no stinkin’ order? Then, you don’t got no stinkin’ insubordination. Black letter law. Case closed; e.g., Redfearn, supra.

Had the DoJ OIG office called us for advice on how to frame Comey’s misconduct (888-at-FELTG; operators are standing by), we would have recommended charging “Lack of Candor.” The elements of that charge are:

  • A failure to disclose something that should have been disclosed
  • To make a given statement accurate and complete.

Hoofman v. Army, 2012 MSPB 107

And according to a recent decision out of the Federal circuit, Lack of Candor must be “knowing” so there’s your third element. Parkinson v. DoJ, 815 F.3d 757 (Fed. Cir. 2016)

That charge squarely places the responsibility on Comey to tell the Attorney General what he was about to say to the press. This way, he is being charged with something he had the obligation to do, not being charged with something based on what his supervisor should have done.

There are references in the DoJ OIG report to “well-established Department policies” that Comey failed to follow. Well, that’s fine. Charge him with not following agency policies. However, failing to abide by agency policies is NOT insubordination.

Which leads us to a final point we have made before in our FELTG articles. Agency OIG offices do hugely important work. They are filled with smart, hard-working investigators and lawyers who are trying to do the right thing. However, with rare exception, they are not filled with civil service law experts. That’s not a problem when they are called upon to investigate suspected criminal misbehavior, as is often the case in OIG investigations. But, when it comes to investigations of workplace misconduct in a federal agency, the world would be a better place, and their work would be more legally precise, if OIGs involved a specialist in civil service law in their report development.

James Comey may have done things he should not have done. We leave those decisions to individuals at higher paygrades than we hold here at FELTG (GS-zeros). However, any GS-5 trainee in human resources who has attended our FELTG seminars will recognize that Comey’s actions cannot be framed as a charge of Insubordination.  [email protected]

The New Executive Orders and Labor Relations

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By William Wiley, June 5, 2018

As most of our wonderful readers know by now, on May 25 President Trump issued three executive orders to shake up the civil service. One of them primarily was focused on employee accountability for performance and misconduct. As we wrote in another article, those changes were significant, but well within the range of flexibilities already in the system, and already employed by the more progressive agencies for many years.

The other two executive orders were designed to change the world of labor relations in federal agencies. Although the EOs have been characterized in the media as taking away the “rights” of unionized employees, they actually don’t do that. Instead, they primarily lay out a framework for organizing management proposals once collective bargaining commences. Unions still retain their basic rights under law; the executive orders direct where management is supposed to take a contrary position consistent with an “effective and efficient Government.”

Here are the primary changes:

  • “Official time” is now called “taxpayer-funded union time.”
  • Agencies should eliminate unrestricted grants of taxpayer-funded union time and instead require employees to obtain specific authorization before using it.
  • Agencies should strive for a negotiated union time rate of 1 hour or less (here are FELTG, we don’t know what this means).
  • Employees may not engage in lobbying activities during official time.
  • Union reps must work 75% of the year in their regular jobs.
  • No free use of agency facilities or property by the union.
  • No reimbursement for expenses incurred performing union activities.
  • No official time to pursue union grievances.
  • OK to use official time to prepare grievances brought by an employee or to appear as a witness.
  • Agencies that form part of an effective and efficient Government should not take more than a year to renegotiate CBAs.
  • The parties should adhere to negotiating period of 6 weeks or less to achieve ground rules, and a negotiating period of between 4 and 6 months for a term CBA under those ground rules.
  • The agency head shall notify the President of any negotiations that last longer than 9 months.
  • A Labor Relations Group shall consist of the OPM Director and staff and representatives of participating agencies determined by their agency head in consultation with OPM.
  • The OPM Director shall chair the Labor Relations Group and provide administrative support for the Labor Relations Group.
  • Agencies with at least 1,000 employees represented by a collective bargaining representative shall participate in the Labor Relations Group. Responsibilities:
    • Gathering information to support agency negotiating efforts and creating an inventory of language on significant subjects of bargaining that have relevance to more than one agency and that have been proposed for inclusion in at least one term CBA.
    • Developing model ground rules for negotiations that, if implemented, would minimize delay and set reasonable limits for good-faith negotiations.
    • Analyzing provisions of term CBAs on subjects of bargaining that have relevance to more than one agency, particularly those that may infringe on, or otherwise affect, reserved management rights.
  • The analysis should include an assessment of CBA provisions that cover comparable subjects, without infringing on reserved management rights.
  • The analysis should also assess the consequences of such CBA provisions on information sharing and analysis, including significant proposals and counter-proposals offered in bargaining.
    • Establishing ongoing communications among agencies engaging with the same labor organizations, and
    • Assisting the OPM Director in developing Government-wide approaches to bargaining issues that advance the policies set forth in the order.
  • This one is HUGE: Management should endeavor to bargain with the union so that employees cannot grieve removals to an arbitrator.

There are a lot of words and terms put forth as mandatory, but in reality, have squishy meaning in application:

  • Interpreted in a manner consistent with the requirement of an effective and efficient Government
  • Reasonable time
  • Promptly
  • Minimize delay
  • Timely manner
  • Expeditiously
  • Reasonable, necessary, and in the public interest

Also, there are time limits for implementation, reports to be made, and authorities assigned. You’ll have to read the full EOs to get the details and the flavor of what the White House is directing to be done. Be that as it may, if you are a management official the above are your goals and requirements for your collective bargaining relationship with your union, so you’d better get hopping if you want this to be done in a “timely manner.”

Here at FELTG, we’ve now given you two summaries relative to the three new EOs. In our third piece regarding these significant changes directed by the White House, we’ll discuss the legality of the requirements of the EOs (we’ve already spotted one illegal provision) and the enforceability of the requirements. We’ll try to get around to that just as soon as our respective heads stop spinning from trying to digest everything that’s going on here. It’s one thing to put out orders; it’s another to be able to enforce those orders (those of you with children know exactly of what I speak).

Some years, our business of civil service law is relatively boring. This is not one of them. Hang in there. We’re with you every step of the way. [email protected]

Executive Order: DEVELOPING EFFICIENT, EFFECTIVE, AND COST-REDUCING APPROACHES TO FEDERAL SECTOR COLLECTIVE BARGAINING

THE WHITE HOUSE

Office of the Press Secretary

FOR IMMEDIATE RELEASE

May 25, 2018

EXECUTIVE ORDER

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DEVELOPING EFFICIENT, EFFECTIVE, AND COST-REDUCING

APPROACHES TO FEDERAL SECTOR COLLECTIVE BARGAINING

 

      By the authority vested in me as President by the Constitution and the laws of the United States of America, and in order to assist executive departments and agencies (agencies) in developing efficient, effective, and cost-reducing collective bargaining agreements (CBAs), as described in chapter 71 of title 5, United States Code, it is hereby ordered as follows:

      Section 1.  Policy.  (a)  Section 7101(b) of title 5, United States Code, requires the Federal Service Labor‑Management Relations Statute (the Statute) to be interpreted in a manner consistent with the requirement of an effective and efficient Government.  Unfortunately, implementation of the Statute has fallen short of these goals.  CBAs, and other agency agreements with collective bargaining representatives, often make it harder for agencies to reward high performers, hold low-performers accountable, or flexibly respond to operational needs.  Many agencies and collective bargaining representatives spend years renegotiating CBAs, with taxpayers paying for both sides’ negotiators.  Agencies must also engage in prolonged negotiations before making even minor operational changes, like relocating office space.

      (b)  The Federal Government must do more to apply the Statute in a manner consistent with effective and efficient Government.  To fulfill this obligation, agencies should secure CBAs that:  promote an effective and efficient means of accomplishing agency missions; encourage the highest levels of employee performance and ethical conduct; ensure employees are accountable for their conduct and performance on the job; expand agency flexibility to address operational needs; reduce the cost of agency operations, including with respect to the use of taxpayer-funded union time; are consistent with applicable laws, rules, and regulations; do not cover matters that are not, by law, subject to bargaining; and preserve management rights under section 7106(a) of title 5, United States Code (management rights).  Further, agencies that form part of an effective and efficient Government should not take more than a year to renegotiate CBAs.

      Sec. 2.  Definitions.  For purposes of this order:

      (a)  The phrase “term CBA” means a CBA of a fixed or indefinite duration reached through substantive bargaining, as opposed to (i) agreements reached through impact and implementation bargaining pursuant to sections 7106(b)(2) and 7106(b)(3) of title 5, United States Code, or (ii) mid-term agreements, negotiated while the basic comprehensive labor contract is in effect, about subjects not included in such contract.

      (b)  The phrase “taxpayer-funded union time” means time granted to a Federal employee to perform non-agency business during duty hours pursuant to section 7131 of title 5, United States Code.

      Sec. 3.  Interagency Labor Relations Working Group.  (a) There is hereby established an Interagency Labor Relations Working Group (Labor Relations Group).

      (b)  Organization.  The Labor Relations Group shall consist of the Director of the Office of Personnel Management (OPM Director), representatives of participating agencies determined by their agency head in consultation with the OPM Director, and OPM staff assigned by the OPM Director.  The OPM Director shall chair the Labor Relations Group and, subject to the availability of appropriations and to the extent permitted by law, provide administrative support for the Labor Relations Group.

      (c)  Agencies.  Agencies with at least 1,000 employees represented by a collective bargaining representative pursuant to chapter 71 of title 5, United States Code, shall participate in the Labor Relations Group.  Agencies with a smaller number of employees represented by a collective bargaining representative may, at the election of their agency head and with the concurrence of the OPM Director, participate in the Labor Relations Group.  Agencies participating in the Labor Relations Group shall provide assistance helpful in carrying out the responsibilities outlined in subsection (d) of this section.  Such assistance shall include designating an agency employee to serve as a point of contact with OPM responsible for providing the Labor Relations Group with sample language for proposals and counter-proposals on significant matters proposed for inclusion in term CBAs, as well as for analyzing and discussing with OPM and the Labor Relations Group the effects of significant CBA provisions on agency effectiveness and efficiency.  Participating agencies should provide other assistance as necessary to support the Labor Relations Group in its mission.

      (d)  Responsibilities and Functions.  The Labor Relations Group shall assist the OPM Director on matters involving labor‑management relations in the executive branch.  To the extent permitted by law, its responsibilities shall include the following:

           (i)    Gathering information to support agency negotiating efforts, including the submissions required under section 8 of this order, and creating an inventory of language on significant subjects of bargaining that have relevance to more than one agency and that have been proposed for inclusion in at least one term CBA;

           (ii)   Developing model ground rules for negotiations that, if implemented, would minimize delay, set reasonable limits for good-faith negotiations, call for Federal Mediation and Conciliation Service (FMCS) to mediate disputed issues not resolved within a reasonable time, and, as appropriate, promptly bring remaining unresolved issues to the Federal Service Impasses Panel (the Panel) for resolution;

           (iii)  Analyzing provisions of term CBAs on subjects of bargaining that have relevance to more than one agency, particularly those that may infringe on, or otherwise affect, reserved management rights.  Such analysis should include an assessment of term CBA provisions that cover comparable subjects, without infringing, or otherwise affecting, reserved management rights.  The analysis should also assess the consequences of such CBA provisions on Federal effectiveness, efficiency, cost of operations, and employee accountability and performance.  The analysis should take particular note of how certain provisions may impede the policies set forth in section 1 of this order or the orderly implementation of laws, rules, or regulations.  The Labor Relations Group may examine general trends and commonalities across term CBAs, and their effects on bargaining-unit operations, but need not separately analyze every provision of each CBA in every Federal bargaining unit;

           (iv)   Sharing information and analysis, as appropriate and permitted by law, including significant proposals and counter-proposals offered in bargaining, in order to reduce duplication of efforts and encourage common approaches across agencies, as appropriate;

           (v)    Establishing ongoing communications among agencies engaging with the same labor organizations in order to facilitate common solutions to common bargaining initiatives; and

           (vi)   Assisting the OPM Director in developing, where appropriate, Government-wide approaches to bargaining issues that advance the policies set forth in section 1 of this order.

      (e)  Within 18 months of the first meeting of the Labor Relations Group, the OPM Director, as the Chair of the group, shall submit to the President, through the Office of Management and Budget (OMB), a report proposing recommendations for meeting the goals set forth in section 1 of this order and for improving the organization, structure, and functioning of labor relations programs across agencies.

      Sec. 4.  Collective Bargaining Objectives.  (a)  The head of each agency that engages in collective bargaining under chapter 71 of title 5, United States Code, shall direct appropriate officials within each agency to prepare a report on all operative term CBAs at least 1 year before their expiration or renewal date.  The report shall recommend new or revised CBA language the agency could seek to include in a renegotiated agreement that would better support the objectives of section 1 of this order.  The officials preparing the report shall consider the analysis and advice of the Labor Relations Group in making recommendations for revisions.  To the extent permitted by law, these reports shall be deemed guidance and advice for agency management related to collective bargaining under section 7114(b)(4)(C) of title 5, United States Code, and thus not subject to disclosure to the exclusive representative or its authorized representative.

      (b)  Consistent with the requirements and provisions of chapter 71 of title 5, United States Code, and other applicable laws and regulations, an agency, when negotiating with a collective bargaining representative, shall:

           (i)    establish collective bargaining objectives that advance the policies of section 1 of this order, with such objectives informed, as appropriate, by the reports required by subsection (a) of this section;

           (ii)   consider the analysis and advice of the Labor Relations Group in establishing these collective bargaining objectives and when evaluating collective bargaining representative proposals;

           (iii)  make every effort to secure a CBA that meets these objectives; and

           (iv)   ensure management and supervisor participation in the negotiating team representing the agency.

      Sec. 5.  Collective Bargaining Procedures.  (a)  To achieve the purposes of this order, agencies shall begin collective bargaining negotiations by making their best effort to negotiate ground rules that minimize delay, set reasonable time limits for good-faith negotiations, call for FMCS mediation of disputed issues not resolved within those time limits, and, as appropriate, promptly bring remaining unresolved issues to the Panel for resolution.  For collective bargaining negotiations, a negotiating period of 6 weeks or less to achieve ground rules, and a negotiating period of between 4 and 6 months for a term CBA under those ground rules, should ordinarily be considered reasonable and to satisfy the “effective and efficient” goal set forth in section 1 of this order.  Agencies shall commit the time and resources necessary to satisfy these temporal objectives and to fulfill their obligation to bargain in good faith.  Any negotiations to establish ground rules that do not conclude after a reasonable period should, to the extent permitted by law, be expeditiously advanced to mediation and, as necessary, to the Panel.

      (b)  During any collective bargaining negotiations under chapter 71 of title 5, United States Code, and consistent with section 7114(b) of that chapter, the agency shall negotiate in good faith to reach agreement on a term CBA, memorandum of understanding (MOU), or any other type of binding agreement that promotes the policies outlined in section 1 of this order.  If such negotiations last longer than the period established by the CBA ground rules — or, absent a pre-set deadline, a reasonable time — the agency shall consider whether requesting assistance from the FMCS and, as appropriate, the Panel, would better promote effective and efficient Government than would continuing negotiations.  Such consideration should evaluate the likelihood that continuing negotiations without FMCS assistance or referral to the Panel would produce an agreement consistent with the goals of section 1 of this order, as well as the cost to the public of continuing to pay for both agency and collective bargaining representative negotiating teams.  Upon the conclusion of the sixth month of any negotiation, the agency head shall receive notice from appropriate agency staff and shall receive monthly notifications thereafter regarding the status of negotiations until they are complete.  The agency head shall notify the President through OPM of any negotiations that have lasted longer than 9 months, in which the assistance of the FMCS either has not been requested or, if requested, has not resulted in agreement or advancement to the Panel.

      (c)  If the commencement or any other stage of bargaining is delayed or impeded because of a collective bargaining representative’s failure to comply with the duty to negotiate in good faith pursuant to section 7114(b) of title 5, United States Code, the agency shall, consistent with applicable law consider whether to:

           (i)   file an unfair labor practice (ULP) complaint under section 7118 of title 5, United States Code, after considering evidence of bad-faith negotiating, including refusal to meet to bargain, refusal to meet as frequently as necessary, refusal to submit proposals or counterproposals, undue delays in bargaining, undue delays in submission of proposals or counterproposals, inadequate preparation for bargaining, and other conduct that constitutes bad‑faith negotiating; or

           (ii)  propose a new contract, memorandum, or other change in agency policy and implement that proposal if the collective bargaining representative does not offer counter-proposals in a timely manner.

      (d)  An agency’s filing of a ULP complaint against a collective bargaining representative shall not further delay negotiations.  Agencies shall negotiate in good faith or request assistance from the FMCS and, as appropriate, the Panel, while a ULP complaint is pending.

      (e)  In developing proposed ground rules, and during any negotiations, agency negotiators shall request the exchange of written proposals, so as to facilitate resolution of negotiability issues and assess the likely effect of specific proposals on agency operations and management rights.  To the extent that an agency’s CBAs, ground rules, or other agreements contain requirements for a bargaining approach other than the exchange of written proposals addressing specific issues, the agency should, at the soonest opportunity, take steps to eliminate them.  If such requirements are based on now-revoked Executive Orders, including Executive Order 12871 of October 1, 1993 (Labor-Management Partnerships) and Executive Order 13522 of December 9, 2009 (Creating Labor-Management Forums to Improve Delivery of Government Services), agencies shall take action, consistent with applicable law, to rescind these requirements.

      (f)  Pursuant to section 7114(c)(2) of title 5, United States Code, the agency head shall review all binding agreements with collective bargaining representatives to ensure that all their provisions are consistent with all applicable laws, rules, and regulations.  When conducting this review, the agency head shall ascertain whether the agreement contains any provisions concerning subjects that are non-negotiable, including provisions that violate Government-wide requirements set forth in any applicable Executive Order or any other applicable Presidential directive.  If an agreement contains any such provisions, the agency head shall disapprove such provisions, consistent with applicable law.  The agency head shall take all practicable steps to render the determinations required by this subsection within 30 days of the date the agreement is executed, in accordance with section 7114(c) of title 5, United States Code, so as not to permit any part of an agreement to become effective that is contrary to applicable law, rule, or regulation.

      Sec. 6.  Permissive Bargaining.  The heads of agencies subject to the provisions of chapter 71 of title 5, United States Code, may not negotiate over the substance of the subjects set forth in section 7106(b)(1) of title 5, United States Code, and shall instruct subordinate officials that they may not negotiate over those same subjects.

      Sec. 7.  Efficient Bargaining over Procedures and Appropriate Arrangements.  (a)  Before beginning negotiations during a term CBA over matters addressed by sections 7106(b)(2) or 7106(b)(3) of title 5, United States Code, agencies shall evaluate whether or not such matters are already covered by the term CBA and therefore are not subject to the duty to bargain.  If such matters are already covered by a term CBA, the agency shall not bargain over such matters.

      (b)  Consistent with section 1 of this order, agencies that engage in bargaining over procedures pursuant to section 7106(b)(2) of title 5, United States Code, shall, consistent with their obligation to negotiate in good faith, bargain over only those items that constitute procedures associated with the exercise of management rights, which do not include measures that excessively interfere with the exercise of such rights.  Likewise, consistent with section 1 of this order, agencies that engage in bargaining over appropriate arrangements pursuant to section 7106(b)(3) of title 5, United States Code, shall, consistent with their obligation to negotiate in good faith, bargain over only those items that constitute appropriate arrangements for employees adversely affected by the exercise of management rights.  In such negotiations, agencies shall ensure that a resulting appropriate arrangement does not excessively interfere with the exercise of management rights.

      Sec. 8.  Public Accessibility.  (a)  Each agency subject to chapter 71 of title 5, United States Code, that engages in any negotiation with a collective bargaining representative, as defined therein, shall submit to the OPM Director each term CBA currently in effect and its expiration date.  Such agency shall also submit any new term CBA and its expiration date to the OPM Director within 30 days of its effective date, and submit new arbitral awards to the OPM Director within 10 business days of receipt.  The OPM Director shall make each term CBA publicly accessible on the Internet as soon as practicable.

      (b)  Within 90 days of the date of this order, the OPM Director shall prescribe a reporting format for submissions required by subsection (a) of this section.  Within 30 days of the OPM Director’s having prescribed the reporting format, agencies shall use this reporting format and make the submissions required under subsection (a) of this section.

      Sec. 9.  General Provisions.  (a)  Nothing in this order shall be construed to impair or otherwise affect:

           (i)   the authority granted by law to an executive department or agency, or the head thereof; or

           (ii)  the functions of the OMB Director relating to budgetary, administrative, or legislative proposals.

      (b)  This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

      (c)  Nothing in this order shall abrogate any CBA in effect on the date of this order.

      (d)  The failure to produce a report for the agency head prior to the termination or renewal of a CBA under section 4(a) of this order shall not prevent an agency from opening a CBA for renegotiation.

      (e)  This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

DONALD J. TRUMP

THE WHITE HOUSE,

    May 25, 2018.

What You Need to Know About the New EOs

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By William Wiley, May 29, 2018

Wow, what a news dump Friday late. On Saturday, it was above the fold on page 1 of the Washington Post; it was above the fold, page 1 of the New York Times; and the PBS News Hour called it the most significant change to our civil service in over a generation. Who knew that President Trump’s three new Executive Orders issued last week would cause such a stir in the media? “Unprecedented changes by which the White House has made it easier to fire bad federal workers by curbing their protections.”

And they are all wrong.

Yes, the President issued three new Executive Orders related to the civil service last week. And, yes, they are significant. But they do not – repeat, do not – curb existing civil service protections or really create very much that is new at all.

However, what they do for you and to you is mandate the government-wide exercise of existing flexibilities in the civil service laws that have always been there and which some forward-looking agencies have been doing for decades. You have to read the Executive Orders themselves to get the full feel of what is being ordered for the Executive Branch by the President. However, until you get a chance to do that, here’s a summary of what you need to start doing now to be in compliance with the orders:

Unacceptable Performance

The White House has concluded that a number of agencies have not been acting fast enough to deal with non-performers. In our FELTG opinion, the White House is right. If you are a management official in human resources or legal in a federal agency, you are to immediately change your practice to conform with the following:

  • The Executive Order drops the concept of an “improvement” period and instead has begun to use the legally-correct term of “demonstration” period. It takes much less time for an employee to demonstrate whether he can do his job than to see if he can improve in doing his job. This movement in concept corrects the error that OPM made back in the early 80s when it created the acronym “PIP” (first, Performance Improvement Period, then Performance Improvement Plan) in reference to the period mandated by law for a demonstration of acceptable performance. Forward-looking agencies such as HHS have already moved in this direction by dropping the acronym “PIP” and describing the period as an “Opportunity to Demonstrate Acceptable Performance.”
  • In understanding that the period is to “demonstrate,” not necessarily “improve,” the EO requires agencies to limit these periods to 30 days. That change will be a great relief to federal supervisors who often are told that the performance period should be 60, 90, or even 120 days in length. One participant in a FELTG seminar earlier this year told us that his HR advisor advised him that the period had to be six months long. Woof. No wonder so many supervisors think it is hard to fire poor performers.

This mandate for a government-wide approach to poor performance is not a curbing of employee protections. The protections are the same as they have been since 1979. It is simply a recognition that some agencies have strayed from the concept of the efficient handling of a performance problem and directing that they focus on getting the job done more quickly while simultaneously honoring the statutory protections of most all federal employees.

Adverse Actions

We use the Unacceptable Performance procedures for holding employees accountable for meeting their performance standards. We use the Adverse Action procedures for holding employees accountable for adhering to workplace rules. The EOs require that agencies change their procedures for firing employees who engage in misconduct in the following manner:

  • Make it clear that while progressive discipline is a factor to be considered in whether an employee should be fired on the occasion of new misconduct, it is not a mandatory requirement to engage in progressive discipline prior to removing someone. Although this has always been the law, some in the media have misunderstood the concept and have claimed that civil servants cannot be fired without progressive discipline.
  • Clarified that past disciple is an aggravating factor in selecting a penalty for current misconduct even if it is for a different type of misconduct. For example, a prior Reprimand for disrespectful conduct would be just as aggravating when selecting discipline for the subsequent misconduct of AWOL as would be a prior Reprimand for AWOL. Recent MSPB decisions issued by Board members appointed by the previous administration have discounted prior discipline if it was different from the current misconduct. The EO corrects that unwarranted drift in our case law.
  • As many of you readers know, the majority of Board members serving in the previous administration came up with a concept that drove us all crazy: The Terrible Trilogy. Those three cases issued in 2010 abandoned decades of case law that held otherwise and ordered that agencies discipline all employees at the same level for the same misconduct throughout the agency. Given that this is a physical impossibility and not helpful at all in holding employees accountable, we all suffered mightily. Goodness knows this newsletter whined long and loud about the damage being caused by the Trilogy. The EO makes it clear that this is not to be the rule in the future. Deciding officials will be able once again to discipline employees independently, not restricted by the discipline meted out to other employees by other deciding officials.
  • When a supervisor decides that an employee should be fired for misconduct or performance, she has to give the employee notice that she is proposing the removal. The employee then has at least seven days to defend himself by responding to the notice. The deciding official can issue a decision any time after the employee responds. Unfortunately, some agencies have been waiting weeks, months, and occasionally years to issue these decisions. Now these decisions must be issued within 15 business days.
  • The 7-day notice period, above, can be extended to no more than 30 days under the EO.

Labor Relations

Two of the three EOs deal specifically with employees in a collective bargaining unit. We’ll address those significant changes in a later article.

For those of you who have been regular readers of our FELTG newsletter and have attended our FELTG seminars over the years, these changes will look very familiar. We have routinely cajoled, begged, and lectured agency HR and legal officials to approach accountability in this manner. We have strongly criticized MSPB when it has varied from these core concepts. Have the President’s advisors been reading the FELTG newsletter? Have they consumed our textbook UnCivil Servant? Have they sat in our seminars, hiding their identities, and soaking up all this good stuff as we dished it out? Or, maybe they actually contacted us and asked for our opinion as to how things could be improved within the current system without the need for new laws?

Well, aren’t you the inquisitive one, My Pretty. Unfortunately, some things have to remain private, for national security reasons. However it happened, you’d better start coming to our seminars and tuning into our webinars if you want to be on the cutting edge of the evolution of federal employment law. Whether we are steering it or just guessing where its going, there’s nobody else out there who can get you this close to the future of our business. [email protected].

Read the full text of the EO here.

Join FELTG for a webinar on the new EOs on June 13. Register here.

Executive Order: PROMOTING ACCOUNTABILITY AND STREAMLINING REMOVAL PROCEDURES CONSISTENT WITH MERIT SYSTEM PRINCIPLES

By the authority vested in me as President by the Constitution and the laws of the United States of America, including sections 1104(a)(1), 3301, and 7301 of title 5, United States Code, and section 301 of title 3, United States Code, and to ensure the effective functioning of the executive branch, it is hereby ordered as follows:

      Section 1.  Purpose.  Merit system principles call for holding Federal employees accountable for performance and conduct.  They state that employees should maintain high standards of integrity, conduct, and concern for the public interest, and that the Federal workforce should be used efficiently and effectively.  They further state that employees should be retained based on the adequacy of their performance, inadequate performance should be corrected, and employees should be separated who cannot or will not improve their performance to meet required standards.  Unfortunately, implementation of America’s civil service laws has fallen far short of these ideals.  The Federal Employee Viewpoint Survey has consistently found that less than one-third of Federal employees believe that the Government deals with poor performers effectively.  Failure to address unacceptable performance and misconduct undermines morale, burdens good performers with subpar colleagues, and inhibits the ability of executive agencies (as defined in section 105 of title 5, United States Code, but excluding the Government Accountability Office) (agencies) to accomplish their missions.  This order advances the ability of supervisors in agencies to promote civil servant accountability consistent with merit system principles while simultaneously recognizing employees’ procedural rights and protections.

      Sec. 2.  Principles for Accountability in the Federal Workforce.  (a)  Removing unacceptable performers should be a straightforward process that minimizes the burden on supervisors.  Agencies should limit opportunity periods to demonstrate acceptable performance under section 4302(c)(6) of title 5, United States Code, to the amount of time that provides sufficient opportunity to demonstrate acceptable performance.

      (b)  Supervisors and deciding officials should not be required to use progressive discipline.  The penalty for an instance of misconduct should be tailored to the facts and circumstances.

      (c)  Each employee’s work performance and disciplinary history is unique, and disciplinary action should be calibrated to the specific facts and circumstances of each individual employee’s situation.  Conduct that justifies discipline of one employee at one time does not necessarily justify similar discipline of a different employee at a different time — particularly where the employees are in different work units or chains of supervision — and agencies are not prohibited from removing an employee simply because they did not remove a different employee for comparable conduct.  Nonetheless, employees should be treated equitably, so agencies should consider appropriate comparators as they evaluate potential disciplinary actions.

      (d)  Suspension should not be a substitute for removal in circumstances in which removal would be appropriate.  Agencies should not require suspension of an employee before proposing to remove that employee, except as may be appropriate under applicable facts.

      (e)  When taking disciplinary action, agencies should have discretion to take into account an employee’s disciplinary record and past work record, including all past misconduct — not only similar past misconduct.  Agencies should provide an employee with appropriate notice when taking a disciplinary action.

      (f)  To the extent practicable, agencies should issue decisions on proposed removals taken under chapter 75 of title 5, United States Code, within 15 business days of the end of the employee reply period following a notice of proposed removal. 

      (g)  To the extent practicable, agencies should limit the written notice of adverse action to the 30 days prescribed in section 7513(b)(1) of title 5, United States Code. 

      (h)  The removal procedures set forth in chapter 75 of title 5, United States Code (Chapter 75 procedures), should be used in appropriate cases to address instances of unacceptable performance.

      (i)  A probationary period should be used as the final step in the hiring process of a new employee.  Supervisors should use that period to assess how well an employee can perform the duties of a job.  A probationary period can be a highly effective tool to evaluate a candidate’s potential to be an asset to an agency before the candidate’s appointment becomes final.

      (j)  Following issuance of regulations under section 7 of this order, agencies should prioritize performance over length of service when determining which employees will be retained following a reduction in force.

      Sec. 3.  Standard for Negotiating Grievance Procedures.  Whenever reasonable in view of the particular circumstances, agency heads shall endeavor to exclude from the application of any grievance procedures negotiated under section 7121 of title 5, United States Code, any dispute concerning decisions to remove any employee from Federal service for misconduct or unacceptable performance.  Each agency shall commit the time and resources necessary to achieve this goal and to fulfill its obligation to bargain in good faith.  If an agreement cannot be reached, the agency shall, to the extent permitted by law, promptly request the assistance of the Federal Mediation and Conciliation Service and, as necessary, the Federal Service Impasses Panel in the resolution of the disagreement.  Within 30 days after the adoption of any collective bargaining agreement that fails to achieve this goal, the agency head shall provide an explanation to the President, through the Director of the Office of Personnel Management (OPM Director). 

      Sec. 4.  Managing the Federal Workforce.  To promote good morale in the Federal workforce, employee accountability, and high performance, and to ensure the effective and efficient accomplishment of agency missions and the efficiency of the Federal service, to the extent consistent with law, no agency shall:

      (a)  subject to grievance procedures or binding arbitration disputes concerning:

(i)   the assignment of ratings of record; or 

(ii)  the award of any form of incentive pay, including cash awards; quality step increases; or recruitment, retention, or relocation payments; 

      (b)  make any agreement, including a collective bargaining agreement:

(i)   that limits the agency’s discretion to employ Chapter 75 procedures to address unacceptable performance of an employee;

(ii)  that requires the use of procedures under chapter 43 of title 5, United States Code (including any performance assistance period or similar informal period to demonstrate improved performance prior to the initiation of an opportunity period under section 4302(c)(6) of title 5, United States Code), before removing an employee for unacceptable performance; or

(iii) that limits the agency’s discretion to remove an employee from Federal service without first engaging in progressive discipline; or

      (c)  generally afford an employee more than a 30-day period to demonstrate acceptable performance under section 4302(c)(6) of title 5, United States Code, except when the agency determines in its sole and exclusive discretion that a longer period is necessary to provide sufficient time to evaluate an employee’s performance. 

      Sec. 5.  Ensuring Integrity of Personnel Files.  Agencies shall not agree to erase, remove, alter, or withhold from another agency any information about a civilian employee’s performance or conduct in that employee’s official personnel records, including an employee’s Official Personnel Folder and Employee Performance File, as part of, or as a condition to, resolving a formal or informal complaint by the employee or settling an administrative challenge to an adverse personnel action.

      Sec. 6.  Data Collection of Adverse Actions.  (a)  For fiscal year 2018, and for each fiscal year thereafter, each agency shall provide a report to the OPM Director containing the following information:

(i)     the number of civilian employees in a probationary period or otherwise employed for a specific term who were removed by the agency;

(ii)    the number of civilian employees reprimanded in writing by the agency;

(iii)   the number of civilian employees afforded an opportunity period by the agency under section 4302(c)(6) of title 5, United States Code, breaking out the number of such employees receiving an opportunity period longer than 30 days;

(iv)    the number of adverse personnel actions taken against civilian employees by the agency, broken down by type of adverse personnel action, including reduction in grade or pay (or equivalent), suspension, and removal;

(v)     the number of decisions on proposed removals by the agency taken under chapter 75 of title 5, United States Code, not issued within 15 business days of the end of the employee reply period; 

(vi)    the number of adverse personnel actions by the agency for which employees received written notice in excess of the 30 days prescribed in section 7513(b)(1) of title 5, United States Code;

(vii)   the number and key terms of settlements reached by the agency with civilian employees in cases arising out of adverse personnel actions; and

(viii)  the resolutions of litigation about adverse personnel actions involving civilian employees reached by the agency.

      (b)  Compilation and submission of the data required by subsection (a) of this section shall be conducted in accordance with all applicable laws, including those governing privacy and data security.

      (c)  To enhance public accountability of agencies for their management of the Federal workforce, the OPM Director shall, consistent with applicable law, publish the information received under subsection (a) of this section, at the minimum level of aggregation necessary to protect personal privacy.  The OPM Director may withhold particular information if publication would unduly risk disclosing information protected by law, including personally identifiable information.

      (d)  Within 60 days of the date of this order, the OPM Director shall issue guidance regarding the implementation of this section, including with respect to any exemptions necessary for compliance with applicable law and the reporting format for submissions required by subsection (a) of this section.

      Sec. 7.  Implementation.  (a)  Within 45 days of the date of this order, the OPM Director shall examine whether existing regulations effectuate the principles set forth in section 2 of this order and the requirements of sections 3, 4, 5, and 6 of this order.  To the extent necessary or appropriate, the OPM Director shall, as soon as practicable, propose for notice and public comment appropriate regulations to effectuate the principles set forth in section 2 of this order and the requirements of sections 3, 4, 5, and 6 of this order.

      (b)  The head of each agency shall take steps to conform internal agency discipline and unacceptable performance policies to the principles and requirements of this order.  To the extent consistent with law, each agency head shall:

(i)   within 45 days of this order, revise its discipline and unacceptable performance policies to conform to the principles and requirements of this order, in areas where new final Office of Personnel Management (OPM) regulations are not required, and shall further revise such policies as necessary to conform to any new final OPM regulations, within 45 days of the issuance of such regulations; and

(ii)  renegotiate, as applicable, any collective bargaining agreement provisions that are inconsistent with any part of this order or any final OPM regulations promulgated pursuant to this order.  Each agency shall give any contractually required notice of its intent to alter the terms of such agreement and reopen negotiations.  Each agency shall, to the extent consistent with law, subsequently conform such terms to the requirements of this order, and to any final OPM regulations issued pursuant to this order, on the earliest practicable date permitted by law.

      (c)  Within 15 months of the adoption of any final rules issued pursuant to subsection (a) of this section, the OPM Director shall submit to the President a report, through the Director of the Office of Management and Budget, evaluating the effect of those rules, including their effect on the ability of Federal supervisors to hold employees accountable for their performance. 

      (d)  Within a reasonable amount of time following the adoption of any final rules issued pursuant to subsection (a) of this section, the OPM Director and the Chief Human Capital Officers Council shall undertake a Government-wide initiative to educate Federal supervisors about holding employees accountable for unacceptable performance or misconduct under those rules.

      Sec. 8.  General Provisions.  (a)  Nothing in this order shall be construed to impair or otherwise affect

(i)   the authority granted by law to an executive department or agency, or the head thereof; or

(ii)  the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

      (b)  Agencies shall consult with employee labor representatives about the implementation of this order.  Nothing in this order shall abrogate any collective bargaining agreement in effect on the date of this order. 

      (c)  This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

      (d)  This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

(e)  If any provision of this order, including any of its applications, is held to be invalid, the remainder of this order and all of its other applications shall not be affected thereby. 

 

DONALD J. TRUMP

 

THE WHITE HOUSE,

    May 25, 2018.

 

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. [email protected]

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.

[email protected]

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. [email protected]