Legal Writing Advice from My Spirit Animal

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By William Wiley, March 1, 2017

When we teach our FELTG legal writing seminars, we sometimes we get a little pushback from attendees who disagree with our “philosophy.” I can understand that. Many of our seminar attendees are very smart people, some educated in the finest law schools in our country. They learned how to write many years ago. They’ve been writing with a comfortable degree of success since then. Why should they change their approach just because some FELTG instructor says that there’s a better way?

Well, maybe it would help to know that our “philosophy” is shared by some gosh-darned important people, people who are typical consumers of legal writing.  I was cleaning out some old files over the weekend and ran across an old legal writing article from a law journal. One of the contributors to the article was a US Court of Appeals judge who just happens to make exactly the same points we do at FELTG when we teach legal writing. Great minds, same paths … it always refreshing to know that really smart people reach the same conclusion that you do.

Here are some pointers from the 30-year old article, pointers that will serve as refreshers for those readers who have attended any of the FELTG Legal Writing seminars:

  • A judge’s eye fatigue and irritability set in well before page 30 of a brief. Keep your writing short and focused and avoid unnecessary language.
  • The law is dynamic and can even be exciting. There is no reason that a legal brief should be dull. Strive for good literature as well as attention-grabbing focus. Make the judge sit up and say, “Hey, this is well-written. Maybe this lawyer actually has something worth my time to read.”
  • Do not use footnotes. Thank goodness these things have in large part moved out of our business. The only exception is the footnoting to case law precedence and other legal authority that FLRA uses for the style of its opinions (a practice MSPB would do well to adopt). If it’s worth saying at all, it’s worth saying in the body of the document.
  • State issues clearly and simply. As noted in the article, “A judge simply does not have the time to ferret out one bright idea buried in too long a sentence.” As we teach in our seminars, if you have written a sentence longer than 30 substantive words, you probably have written too much.
  • A bad brief will make every conceivable argument and even some that are not conceivable. Focus. Focus. Focus. If you have more than three issues in an appellate brief, you probably have too many issues. Arguments gain no increased credibility simply because they are repeated using different words.
  • Write for the 12th grade reader. It makes you be focused, knowledgeable about the issues, and the judge will send you a Valentine’s Day card in gratitude. Seriously. 12th If a judge has to consult a dictionary to understand your writings, you have failed.
  • Your case should be stated simply in the opening paragraph. Do not start out with a list of facts and details until you have provided a framework on which to hang them. A good opening sentence to a first paragraph will start with something like, “We are bringing this appeal because …”
  • Our judge-author also cringes whenever she hears or reads words such as “clearly,” “plainly,” or “obviously.” Every time a judge sees these words, she suspects that the issue is not really clear, plain, or obvious.
  • Citations that are weak or do not support the proposition being put forward are deadly. A judge will doubt everything else you have to say if your citation mischaracterizes a precedent or a factual finding.
  • Don’t be afraid to make a concession if the facts call for it. Judges find such honesty refreshing and will give greater weight to the rest of your argument.
  • Although emotional arguments to a jury might carry the day, you should avoid emotional arguments to a judge, e.g., “This poor innocent supervisor did not reprise against the self-centered, selfish, egotistical whistleblower. He was just doing his job; a job he was hired to do by the American people, to make our country great again.” Judges are swayed by logic, not emotion.

If you’re interested in the full article, you can find it in the September 1988 edition of the ABA Journal. I’m sure you have it lying around your office somewhere. And if you’re interested in the circuit court judge who contributed her suggestions to the article, she’s moved on to another job, a job in which some say she is receiving the best medical care available in America today: Justice Ruth Bader Ginsburg. [email protected].

Taking a Leak

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By William Wiley, February 21, 2017

Here’s a recent hypothetical phone call between one of our top notch FELTG reporters and a senior career employee at a big federal agency.

FELTG:  So, how’s it going, Buddy?

Civil Servant: It stinks. My new political employee boss is a stupid, incompetent, smelly jerk. He’s improperly funneling a lot of huge federal contracts to his family members. And, he just told me that his brother has been hired as a spy at CIA. How you doing?

It’s getting to where every federal employee probably needs an employment lawyer on speed dial, and to use that phone number before he says anything to anybody. Here’s how this somewhat innocuous statement looks in consideration of federal employment law.

  1. “My new political employee boss is a stupid, incompetent, smelly jerk.” This statement constitutes actionable misconduct. Yes, our civil servant may have a Constitutional right to freedom of speech in general, but a senior agency official saying something like this to a reporter constitutes the charge of Disrespectful Conduct and warrants at a minimum a Reprimand. Federal employees are free to have these thoughts, but not free to express them to a reporter while sitting in a high-level federal position.
  2. “He’s improperly funneling a lot of federal contracts to his family members.” This statement is protected and may not be the basis for discipline. By definition, it constitutes “whistleblowing,” 5 USC 2302(b)(8). An agency may not discipline (e.g., reprise against) a federal employee who discloses violations of law, as this would.
  3. “And, he just told me that his brother has been hired as a spy at CIA.” This disclosure violates a law that prohibits the release of secret information. Therefore, it is not whistleblowing and warrants not just discipline, but also criminal prosecution.

One of the problems we have as a society is that a number of people who talk about federal employees who disclose information have not had the advantage of the legal training provided by the Federal Employment Law Training Group. They give speeches, interviews on television, and hold press conferences in which they lambaste employees who leak information about the internal goings-on in a federal agency. A number of those senior officials have initiated investigations into the leaks with the intent of firing the leak-ees.

Well, here’s the deal, Lucille. There are two kinds of leaks: those that align with the second statement above and those that align with the third. If a federal manager finds out that one of her underlings leaked information to a reporter that discloses a violation of law, gross mismanagement, gross waste of funds, a danger to public safety or health, or an abuse of authority, that employee is ABSOLUTELY PROTECTED by law from discipline, reassignment, a significant change in duties, or any other personnel action that would constitute whistleblower reprisal. However, if the disclosure itself as in the third statement above violates a law against making such disclosures (e.g. the disclosing of secret information), then the employee ABSOLUTELY can be disciplined, fired, and even charged with criminal misconduct.

So when you hear that someone is going after “leakers,” keep in mind that there are good leakers and there are bad leakers, according to the law. Good leakers are whistleblowers who cannot be disciplined, and bad leakers are civil servants who disclose information prohibited from disclosure by law and who can be fired.

Unfortunately, as we wrote about earlier this month, if you leak, you may not know which of the two categories you fall into until after you’ve mortgaged the house to defend yourself in a removal action. Please be careful out there. [email protected]

Too Much Adjudication

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By William Wiley, February 7, 2017

As many of you readers know, here at FELTG in addition to providing open-enrollment, webinar and onsite training, we also have a number of agency legal clients to whom we provide advice and representation regarding employee conduct and performance problems. Recently, we were reviewing the judge’s decision in an unacceptable performance removal case which we had helped the agency construct. Claims of discrimination, unreasonably short PIP, hostile work environment based on age … the usual sorts of appellant claims. And of course, the claims all failed and the removal was upheld. Unacceptable performance actions are soooo easy IF you know what you’re doing.

But enough horn tooting.

The judge in this case did something that we see all too often. It seems innocuous, but it is bad for the overall jurisprudence in federal employment law. Part of the appellant’s argument that the removal was wrong was that his supervisor never counseled him prior to the PIP that his performance was unacceptable. As every graduate of our FELTG MSPB Law Week and UnCivil Servant seminars knows, there are four (and only four) requirements for firing a poor performer:

  1. The agency’s appraisal system has been approved by OPM.
  2. The supervisor has informed the employee of the critical elements of acceptable performance.
  3. The employee was PIPed after demonstrating unacceptable performance.
  4. At its conclusion, the supervisor determined that the employee’s performance was Unacceptable in at least one critical element during the PIP.

5 CFR 432.104, Belcher v. Air Force, 82 MSPR 230 (1999), and a million other cases.

Unfortunately, the judge in our case misread the regulation and the case law and added a fifth requirement: that the employee be warned PRIOR TO THE PIP that his performance was unacceptable.  We’ve learned here at FELTG, when we go through the steps to removing a poor performer that some supervisors cannot believe that a supervisor can PIP an employee without prior warning of poor performance. It just doesn’t seem right to them. Some will argue that a “good” supervisor gives constant feedback to an employee so that a PIP implementation will come as no surprise.

Well, isn’t that just delightful. Maybe indeed a “good” supervisor should give constant feedback. Maybe there should be a requirement that employees be warned about bad performance before the initiation of a PIP. But that’s not the law. Congress in 1978 did not say that a warning was necessary; therefore, it is not. Oh, if you want to warn, if you think it’s good supervision to do so, have at it. Or, get yourself elected to Congress and amend the law. Just remember: all a PIP does is say to the employee, “Do your darned job.” Should you really have to warn an employee that he will no longer have a job if he doesn’t do his job? We leave that up to your good management sense to answer that question for yourself.

The problem in this case is that by

  1. Creating a requirement not found in law, and then
  2. Adjudicating whether this “alternative” requirement indeed is present in the case,
  3. An unsophisticated reader might conclude that in the next case, the agency had better satisfy this “alternative” requirement.

Folks. Our adjudicators should adjudicate the law. In this decision, instead of adjudicating the facts of the case, the judge should have said:

The appellant raises the claim that he was not warned of his poor performance prior to initiation of the PIP. As there is no requirement for a pre-PIP warning, I will not consider this claim further.

As Supreme-Court-Nominee Neil Gorsuch recently said, “A judge who likes every outcome he reaches is very likely a bad judge…” Perhaps a pre-PIP warning is a good idea. However, until Congress says it is, it’s not a requirement.  Decisions that mislead by adjudicating issues that are not really issues are bad for our business. [email protected]

What is This Ominous Picture All About?

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By William Wiley, January 31, 2017

No, this is not one of the inaugural crowd photos that was deleted from the National Park Service website. It is a photo of the big celebration on the Mall a couple weeks ago to celebrate the 38th anniversary of the effective date of the Civil Service Reform Act of 1978. Were you there? Well, although no one else was either, we here at FELTG certainly were (hey, somebody’s taking that picture) because we believe in the importance of federal workers and an efficient accountable government workforce. Plus, we never pass up an opportunity to celebrate anything if food and drink are involved. Be sure to mark your calendars for next year so that you, too, can participate in the big celebration.

Of course, next year the celebration may be even smaller than this picture shows we had this year. Why, you ask? Well, if you have been anywhere other than locked in the bowels of the Mount Weather underground emergency operations center, you will have heard by now that the new administration has declared a hiring freeze for large swaths of the federal government – covering some organizations, excluding others – with Congress considering bills to include/exclude their own favorite agencies.

If you’ve been around for previous hiring freezes, you know that they are a lot like other mistakes in judgment that one might exercise. When something especially good happens to you, for many of us it sounds like a good time to celebrate by having an extra glass or three of a favorite adult libation. Of course, the next morning we wake up and realize that tying one on in retrospect probably wasn’t the smartest thing we could have done the night before. Same result with a hiring freeze. It’s easy to declare one and it sounds like a good way to improve government by reducing the payroll, but in reality, the morning-after hangover tells us that there was probably a better way to get to the same result.

We all know how a hiring freeze works. When a person quits his government job, the frozen agency is not allowed to replace the employee one-for-one. Sometimes there’s a ratio of allowed replacements; sometimes none are allowed at all. According to a recent article in the Washington Post, about 10% of the federal workforce leaves government each year, almost all doing so voluntarily. We don’t have statistics regarding where they go next, but it would seem logical that those who do not retire move on to other jobs in the private sector.

Stay with me as we climb this logic tree. For the sake of having easy numbers, let’s say that 10 out of 100 federal employees (10% of the federal workforce) are toxic; e.g., are bad employees who are not earning their pay check. In a non-freeze year, 10 employees would quit, 10 new employees would be hired, and the percentage of bad employees would stay at 10%.

Now, let’s look at a freeze year. I think it’s fair to say that comparing great employees to toxic workers, the good employees are more likely to leave government than are the weak employees. Good employees get better offers; bad employees often know they are lucky to have a well-paying government job. The good leave. The bad stay put. Again, using easy numbers for illustration, if 10 employees leave the fed during a hiring freeze and are not replaced, we go from 10 bad employees out of 100 to 10 out of 90. That means that now 11% of the civil service is composed of bad employees. If we lose another 10 good employees the following freeze year, we now have 10 toxic employees for every 80 good employees, a bad-to-good ratio of 12.5%. And so on, and so on. Use your own numbers, time frames, and ratios if you prefer, but one thing is clear. If you accept the premise that good employees are more likely to leave government than are bad employees, eventually you will have a federal workforce with a higher percentage of non-performing employees than you would without a hiring freeze.

That’s what I call an unwise hangover.

Another aspect of a hiring freeze that will resonate with readers who have attended any of Deb’s dynamite EEO law seminars regarding the accommodation of employees with disabilities. As all FELTG-trained practitioners know, when working with a disabled employee, an agency is first required to try to modify the employee’s current position so that she can perform its essential duties. If that is not possible, the disabled employee has two other entitlements. In priority order, they are:

  1. Placement into a vacant position for which the employee is qualified, at the same grade anywhere one is available within the agency.
  2. Placement into a vacant position for which the employee is qualified and for which the agency is recruiting at a lower grade.

With a hiring freeze, there are no vacant positions available at any grade. Therefore, the only option for the agency when confronted with a disabled employee who cannot perform an essential job function is removal. The two employee entitlements above become meaningless.

There may well be good reasons for a hiring freeze. Even so, there are also bad outcomes that result from a hiring freeze. One would hope that the decision to impose a freeze is reached only after serious consideration of the morning-after. [email protected]

A Message for DHS and Other Suspenseful Agencies

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By William Wiley, January 24, 2017

While reviewing Board decisions that closed out 2016, I ran across a couple of Opinions and Orders over at DHS that were issued on the same day:

  • 45-day suspension: Figueroa v. DHS, NY-0752-14-0203-I-1 (December 22, 2016)(NP)
  • 30-day suspension: Flournoy v. DHS, SF-0752-16-0411-I-1 (December 22, 2016)(NP)

DHS won both appeals with the Board affirming each suspension. Nothing to learn from MSPB’s analysis of the penalty and the evidence supporting charges. So why pay attention to these two actions? Well, for one simple reason:

Why, oh why, did DHS implement these two long suspensions rather than shorter suspensions that would not be within MSPB’s jurisdiction (i.e., 14-day suspensions)?

No agency in its right mind wants to have to defend a disciplinary action before the Board if it does not have to. GAO estimates that an agency defense at MSPB costs the government about $100,000 even if successful; more if the appeal is lost. The agency retains the unilateral right to set the length of a suspension. Why would it ever suspend an employee for more than 14 days and have to defend itself before MSPB when it could just as easily suspend for fewer than 14 days and at worst have to defend itself before an arbitrator, half of whose fee is paid by the union and where the grievant doesn’t have rights to discovery? In addition, if an agency suspends an employee for, say, 45 days, that’s 45 days that it is deprived of the employee’s services, causing coworkers to have to carry an extra load for the duration of the suspension. Given the loss of productivity in a long suspension, the significant resources required to defend in a Board appeal, and the rights that Board appellants have to subpoena documents, conduct depositions of agency managers, and utilize all the other tools of discovery not available in arbitration, why ever do a long suspension?

One could argue that a longer suspension is more likely to correct behavior than a shorter one. Well, one who argues that is doing so without any support in research (facts may not restrain some politicians, but they critical to those among us with a reasoned approach to life). There have never been any studies published in the history of the civil service that support the conclusion that longer suspensions are stronger motivators of correct workplace behavior. So this is not a good reason.

Or, one could argue that the employee “deserves” a longer suspension because of what he did. If he deserves a longer suspension, he probably deserves to be fired. Besides, we don’t discipline to punish for the sake of punishment. We discipline to correct behavior. Ours is not a system based on retribution.

Or, perhaps there’s a concern that the Board will find a removal to be an unreasonable penalty, but a long suspension to be within the bounds of reason. The agency might be trying to avoid a penalty mitigation on appeal by implementing a suspension rather than a removal. Although this rationale has more appeal than the first two, it still fails on analysis:

  1. There is an exceedingly fine line between an act of misconduct that warrants removal and an act of misconduct that warrants a 45-day suspension. Unfortunately, we don’t really know where that line is until at least two of the Board members agree where it should be. Maybe it’s time in the civil service to roll the dice a bit more. Hey, if Congress is going to beat us up for not firing enough people, at least if you have to take a mitigation of a removal to a suspension on appeal to the Board, you can blame MSPB instead of your agency. Who knows; if you do that maybe The Hill will pass some special laws to get your agency out from under those mean old Board members. Avoiding blame is an important part of political life, you might have noticed.
  1. Think strategically like a gambler:
  • If you remove the guy instead of suspending him, if your roll of the Douglas-dice results in the employee staying fired, you have one less bad employee to worry about.
  • If you remove the guy instead of suspending him, if your roll of the Douglas-dice results in the penalty being mitigated to a suspension, you’re out maybe 100 days of back pay and perhaps some attorney fees.

Is the chance of getting rid of a bad employee permanently worth the risk of having to pay out maybe $25,000 to $50,000 if the removal happens to be mitigated on appeal? Thank goodness that’s not a decision that those of who claim to be advisors have to make. In my career, I’ve certainly run into senior managers who would have happily risked that amount to get rid of an unproductive toxic individual.

Whether you work at DHS or some other agency, if you’re still looking for a New Year’s resolution, make it to avoid long suspensions. If the dude doesn’t deserve to be fired, suspend him for no more than 14 days. If he indeed deserves more than a 14-day suspension, fire him. In the long haul, you’ll be the happier for it.

[email protected]

So, What Do You Do?

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By William Wiley, January 11, 2016

It’s a common question. One that most of us have a title-like elevator-answer for:

I’m an attorney.

I’m a human resources specialist.

Maybe even: I do labor relations for the XYZ Agency.

Yes, but what do you actually do when you’re performing in these roles? If you are an employment law practitioner, did you think to say:

I help supervisors fire bad government employees.

For some of you readers, that should be Line Number One in your mental position description. But we don’t often articulate our roles that way. It sounds mean. It acknowledges that the government has some employees who do not do their jobs at a minimum level of performance or who violate workplace rules. However, in these times of clarity and transparency, perhaps we should acknowledge that this is a major responsibility that many of us have.

Although it’s our job, I don’t think any of us relish the idea of doing it. We wish that there were no bad civil servants who could not be rehabilitated. We would prefer if the darned process wasn’t so confrontational. We hope that supervisors figure out how to otherwise deal with problem employees, by motivating them to work better or encouraging them to leave government voluntarily through some bi-lateral agreement. But when push comes to shove, when the job is just not getting done and nothing else works, a supervisor is left with two options: either approve that a non-productive employee continues on the government payroll being paid tax payer dollars to which he is not entitled, or fire him. When the option is firing, we advisors are obligated to step up to the plate, put on our big-girl/big-boy pants, and do what needs to be done.

If we acknowledge that this is our job, we also acknowledge that we are not the action officials. It is the front-line supervisor at most every federal agency who is delegated the responsibility to make these decisions. We are but advisors, counselors, technicians of the law. When a supervisor comes to us with a bad employee, it is our job to say, “What do you want to do with this guy?” Instead, what we often hear in our FELTG supervisory training classes is that “HR won’t let me do that” or “That’ll never get past legal.” Well, those of us with JD and HRS after our names were not hired to make these decisions. It’s the line managers who decide the outcome and we technicians who help them get there. At least, that’s the way it’s supposed to work. Yet in too many agencies we advisors frustrate managers by telling them they can’t do something that they want to do that in their opinion, would allow them to manage the government better.

Play this mind game with me for a minute. What if you were a private company – law firm, HR consult, whatever – and you held yourself out as a service provider for dealing with problem employees. If a manager came to you for advice on how to fire someone, and your response was that they should not fire the person, then you wouldn’t be in business very long. Of course, if what they wanted to do was illegal, you could tell the potential client that it wasn’t legal, and that you wouldn’t be part of something that was illegal. That’s just fine. But if you gave your advice as to the pros and cons, and the client wanted to go through with the firing anyway, I would think that you would help them do that. It is their responsibility to make those decisions and they bear the blame or credit if their decision is a good one.

Here’s an example of what I see all too often. In a classroom of attorneys I was working with a few months ago, I gave some standard advice for how to handle an employee in a particular situation. One of the participants disagreed and said that if I did that, the employee might be able to claim that the agency had interfered with her rights in the future should criminal charges be brought. There was no question as to whether the approach I was suggesting be taken was best for the supervisor. It was. However, the agency attorney who disagreed felt it might not be best for the employee. And without any case law to back up that speculation: “It might happen.” Well, it MIGHT HAPPEN, and I MIGHT NOT CARE because the employee is not my client. The agency supervisor is.

We should think of ourselves as service providers. The services we provide are intended to help agency supervisors, managers, and executives run the government. Next time a supervisor asks you for assistance, say to yourself, “How can I help this supervisor do what she wants to do?”  If instead you find yourself saying, “No, you can’t do that,” then please go re-read your mental PD.

[email protected]

A Use-or-Lose Holiday Gift from MSPB

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By William Wiley, January 3, 2017

It’s that time of year: taking it easy, eating waaaay too much sugar, giving gifts. Even MSPB is not beneath recognizing the holiday spirit with a little gift of its own to all of us in the world of federal sector employment law.

Sometimes MSPB presents are not particularly desirable, like the crazy disparate-penalty approach to comparative penalties and the dark-road of diminished respect for prior acts of discipline when it comes to selecting an eventual removal. Those are some gifts we’d return if we could, but even Nordstrom’s won’t take back that stuff.

This year as the holidays approached, the Board’s insightful and productive Office of Policy and Evaluation (OPE) bestowed on us all a gift that hopefully will provide some needed insight for the new administration as it develops it plans for draining the civil service swamp. As do many on Capitol Hill, the incoming President has spoken loudly about the need for more accountability in government, for federal agencies to be run more like businesses than as governmental agencies. Well, that all feels good in the gut and sounds powerful out there on the campaign trail. However, here at FELTG we prefer data and information rather than feelings and campaign speeches. Fortunately, our end-of-year present from MSPB’s OPE is just the sort of meat we all need to chew on as decisions are being made about a “new” civil service.

In mid-December, MSPB issued a report entitled “Addressing Misconduct in the Federal Civil Service: Management Perspectives; Supervisors Report the Greatest Barriers to Addressing Employee Misconduct Come from Within Agencies.” Given that there’s a wide-spread belief that agencies don’t fire enough bad employees, it would be helpful to have some data about why that might be. Well, happy New Year to us: OPE’s research provides all those policy-makers to-be in the White House and on the Hill just that sort of information:

  • Finding: About half of all proposed removals result in the employee leaving voluntarily. This is great news for agency officials. Although we must put cases together in preparation for an eventual challenge in an appeal, the reality is that it is unusual for us to actually have to defend a removal before MSPB. To this half of proposed removals that are never consummated because the employee quits, our FELTG experience would add to it a large group of employees who are indeed terminated, but who never file an appeal (old OPM numbers estimate that at about half of all removals), 60% who settle without a hearing after filing an appeal, and another group of employees who are poor performers who are PIPed. Our experience is that 50-60% of those employees leave voluntarily before removal is even proposed, sometimes within days of the PIP being initiated. Bottom Line: Although we always need to be prepared to defend a removal on appeal, maybe one in ten removal actions that get started actually make it to review by MSPB.
  • Finding: Fewer than half of first-line supervisors said they were confident they would be allowed to replace an employee fired for misconduct. Interestingly, 60-70% of managers and executives believe that replacement employees will be approved if an employee is removed for misconduct. It’s a bit unclear whether these managers and executives are referring to their ability to replace their own subordinates who are fired for misconduct, or to the ability of all supervisors to replace fired subordinates. Perhaps the new administration should give consideration to this back-fill dilemma when it starts trying to drain the civil service swamp. If you can accept that supervisors are hesitant to get rid of bad performers now because of this fear of not being able to replace them, just think how hesitant they will be to fire bad employees with a hiring freeze in place. A poor performer often is seen as better than no performer. Bottom Line: Check with upper management before you initiate a removal if you are concerned about the ability to back-fill once the employee is gone.
  • Finding: The greatest perceived barrier to a front-line supervisor initiating a removal is the agency’s perceived culture against firing bad employees. This is another official finding that parallels what we here at FELTG have run into when we teach accountability. “Upper management at this place doesn’t want us to remove employees. Human resources and legal are afraid of discrimination complaints, claims of whistleblower reprisal and the dreaded OSC, the union and it’s unfair labor practice charges and grievances, etc.” Supervisors feeling that they would not be supported by senior management and their discipline advisors was the Number One reported reason that bad employees are kept on the payroll when they should be terminated. Bottom Line: Hey, you managers and advisors out there. Do your damned jobs. Change the culture; not into one where everybody gets fired, but one in which everyone gets held accountable. With fairness and gusto.
  • Finding: The second greatest barrier to firing bad employees was the low quality of service provided by the human resources office. Woo, doggies. You regular readers know how we feel about that here at good old FELTG. We have howled against the moon for 15 years about the low quality of service provided by some human resources offices around the government. Too many employment law practitioners don’t know the basics of our system, and worst of all, don’t know what they don’t know. Not only do they not know what to do, they sit in their offices and hope that no one asks them for advice so that they can focus on other things, like lunch. If you are a human resources employment law professional, and you want to know if you are a good service provider, simply ask yourself three questions. During 2016, did you:
  1. Attend any FELTG training?
  2. Call any supervisors and ask, “Do you have any bad employees I can help you fire today?”
  3. Read every issue of the FELTG Newsletter?

Bottom Line: Two yes’s out of three questions, we will consider you part of our family and a decent service provider.  Three out of three, we are honored that you move among us. Free coffee at all of our seminars for you.

This OPE gift is a wonderful holiday present. We encourage you to read it in detail because it is just full of gems of wisdom beyond the ones we’ve highlighted here: http://www.mspb.gov/mspbsearch/viewdocs.aspx?docnumber=1363799&version=1369157&application=ACROBAT. If you run into any newly-minted Trumpettes as the new administration unfolds, maybe be sure they get a copy of it, as well.

Easier still, here is language that if it were embodied in a single email from your agency’s new Presidential appointee could change the course of civil service history. FELTG copyright hereby released should you choose to use it:

To all front-line supervisors, managers, executives, human resources specialists, and legal advisors:

From today forward, ours will be an agency built on employee accountability. If there are employees at this agency who are non-performers or who do not obey our rules, they should be disciplined and removed from service, promptly and fairly, if they do not improve their behavior. If a supervisor removes an employee for misconduct or performance, I personally guarantee that suervisor will be able to replace that employee. All agency discipline and performance advisors will be trained and continually evaluated by the professionals at FELTG to ensure the adequacy of the service they provide and the possession of the knowledge necessary to hold civil servants accountable.

FELTG. Always thinking ahead of the civil service curve. [email protected]

Two Lumps of Coal from the Guys in the Black Robes

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By William Wiley, December 19, 2016

Just last week, we wrote about a decision from the federal circuit that we said reflected a lack of understanding as to how a federal agency operates. In case you’ve already forgotten due to excessive pre-Christmas festivating, the Federal Circuit faulted an agency because it did not notify the employee in a proposal-to-remove notice that a senior manager had told the proposing and deciding officials that if the employee had done what was alleged, “we need to try and terminate her.” Federal Education Association v. DoD Schools, Fed. Cir. No. 2015-3173 (November 18, 2016). There was no indication that this communication actually impacted the decision to remove the employee. No finding that the communication was otherwise improper. Just a ruling that such pre-decisional communication has to be disclosed to the employee because it “was likely to result in undue pressure on the Deciding Official.”

As we pointed out in our newsletter, these sorts of communications occur all the time in federal agencies. And one could argue that just about any affirmative communication from a senior manager might be likely to result in pressure on lower level supervisors. In fact, pressuring lower level supervisors into action could be argued to be the first sentence in a senior manager’s position description. Some might even call that “leadership.” And “undue”? Every reader of this article is about to get a new political overlord, henceforth known for all eternity as a “Trumpette”© (copyright FELTG 2016). So, when the Trumpettes© take control and start issuing missives that bad employees should be removed if they don’t improve, do we need to staple those to all the proposal notices that follow? Holy, moly, what a lack of appreciation for how managers run the government.

Well, now we find a second lump of coal in our Christmas stocking, Miller v. DoJ, slip op 2015-3149 (Fed. Cir., December 2, 2016). In that case, DoJ had to defend itself against the appellant’s claim that the agency had reprised against him because of his whistleblowing.

As everyone knows who has attended our festive and fantastic MSPB Law Week (next offered March 13-17 in DC, then June 12-16 in the always delightful and inspiring San Francisco), an agency defends itself from a claim of whistleblower reprisal by arguing that the three Carr factors support a no-reprisal conclusion:

  1. The agency’s evidence to support the action claimed to be in reprisal for whistleblowing is strong,
  2. The motive for the agency management officials to reprise is weak, and
  3. The agency treated other employees who are not whistleblowers just as harshly as it did the whistleblower. Carr v. SSA, 185 F.3d 1318 (Fed. Cir. 1999).

In Miller, the alleged reprisal personnel action was a series of reassignments related to an OIG investigation. Regarding Factor 3 (similarly situated non-whistleblowers), the agency presented proof that there were no other employees similarly situated to the appellant at his facility who were not whistleblowers who were not reassigned; e.g. who were treated less harshly. The Board accepted this evidence and concluded that Carr Factor 3 carried no weight one way or the other. The fact that there were no non-whistleblowers under the control of the action official at the agency could not be an indicator of whether the action official considered the appellant’s whistleblowing in his reassignment decision-making. Makes sense to me.

Of course, the fact that it makes sense to me is just more proof I have no future as a federal judge. The court majority in Miller concluded that the agency’s evidence was deficient because the agency did not prove that non-whistleblowers elsewhere in the agency who were the subject of an OIG investigation also were reassigned. That’s right, the court reasoned that it is the “agency” that is required to prove similar treatment between whistleblowers and non-whistleblowers, even though it is a single, relatively low level manager who made the reassignment decision. Proof of no similarly-situated employees in the organization over which the action official has control is not enough.

With all due respect, this makes no sense. The agency here is the US Department of Justice, an organization of over 100,000 employees performing highly divergent functions. Here, a correctional officer is the appellant. The court is saying that the agency should have submitted proof of how it handles, perhaps, the reassignment of one of its tax lawyers who is the subject of an OIG investigation. Or, an administrative assistant over at the US Marshals Service, or maybe an environmental paralegal in the Environmental and Natural Resources Division. Why does it matter if some other supervisor did or did not reassign an employee associated to an OIG investigation? The action official in Miller is the warden of the local facility. That is who we should be assessing for whether he had an anti-whistleblower animus. A federal agency is not some monolithic Borg-like entity, controlled in thought by a single consciousness at the top who knows all and makes all the decisions. The warden in this case reassigned the appellant. Proof that a dozen other managers spread out among DEA, EOUSA, ATF and the War Division of DoJ reassigned OIG-targets who were NOT whistleblowers in no conceivable way goes to evidence as to what was in the brain of the local warden who did the whistleblower reassignment.

The Federal Circuit invented the Carr analysis. It now claims to be bound by it to consider agency-wide actions as low level as a reassignment when evaluating claims of whistleblower reprisal. It seems to expect that everyone in a federal agency knows everything that is happening within it, even things as minor as a reassignment. This approach is nonsensical and reflective of a lack of common sense when it comes to understanding how a federal agency is run. The law does not work without an appreciation for real-life application. [email protected]

Draining the Discipline Swamp

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By William Wiley, December 5, 2016

Dear President-Elect Trump:

Hey, how’s it going? Getting settled into that commander-in-Chief-to-Be role? Having fun answering phone calls and sending out tweets 24/7? Ready to run the Executive Branch? Trust me; we here in the federal employment law community are just as excited as you must be by this prospect.

And here at little old FELTG, we stand ready to help you, in any way we can. We are All Civil Service / All the Time, and we just love to act all smart and give out advice, whether the advice is asked for, or not.

You might remember that last week, we dropped you a public note about how screwed up the current oversight functions are within our beloved civil service. There are at least seven avenues of review if an employee claims to have been mistreated by his employing agency (eight if you count our previous typo). Their jurisdictions may or may not overlap, depending on exactly the claim being made, their procedures are all different, and they each have their own turf to defend. We suggested oh-so-delicately that you add fixing this quagmire to your to-do list once you take the civil service oath.

Interesting Fact: The very first law passed by Congress, Law Number One as they say over at the National Achieves, was that those of us lucky enough to be chosen to work for the United States government must swear allegiance to it. That oath you’ll be taking on January 20 is the very same oath that every civil servant has ever taken. Welcome to the club.

In response to our article last week about the oversight mess you’re inheriting, we received figuratively thousands of demands and pleas that we provide the answer to this mess. It’s one thing to point out a problem; it’s a higher calling to propose a solution. Never one to duck a higher calling, here we go with the FELTG Fix for the Problem of firing a bad federal employee.

Stay with us here; this gets pretty darned deep.

The Root of the Problem:  A foundational component of our civil service is that once an employee completes her probationary period and reaches a career status, she is vested in her position with the government. The courts, including the U.S. Supreme Court, have historically acknowledged that a career federal employee has a “property interest” in continued employment.

In our great country, an individual retains his property until it is either taken from him or he disposes of it himself (as a gift or as a sale). A taking occurs when someone breaks into your home and removes that big flat screen TV from your Man Cave wall. The more civil approach to a taking is when one person sues another person, demanding property ($) to right some wrong. Separately, the state can take away a citizen’s property by demanding the payment of a fine such as a parking ticket. Unlike an illegal taking (like a burglary), legal takings are adversarial and fought out in court, using controlling law, evidence, and argument before a neutral fact finder. This is known as the “adversarial” process; a process whereby property is taken away from someone in a fair and just manner.

When a federal agency fires one of its career employees, it has taken away that employee’s property. Therefore, to do it legally, the agency is required to subject itself to an “adversarial” process, seven of which we noted in last week’s article. In those processes, the agency has the burden of proving that the employee is at fault, with the employee having the commensurate right to argue that he is faultless. In a fault-based system like this, we need investigators, arbitrators, judges, boards, commissions, authorities, lots of time and money, and lots and lots of lawyers.

Not only is the adversarial world expensive and time consuming, it doesn’t always produce the right result. The side that happens to have the most money or best advocate may win an appeal, even though the other side should have won. Sometimes the government will pay money to “settle” a case, even though it is in the right, but doesn’t want to dedicate the adversarial resources to prove it. After 40 years of the current civil service law, agency removals are set aside on appeal at a rate of one-in four or one-in-five. That’s a dismal success rate when you’re talking about fairness to an employee and government money that is being wasted.

The Fix:  About 150 years ago, Germany ran into a similar problem in the workplace. Individuals were getting injured at work without any assurance that their injuries would be compensated. If the injured individual felt that the employer was at fault, he had to hire a lawyer, bring suit, and then he may or may not have been successful in receiving damages. Any damages awarded, of course, had to be shared with the successful attorney who represented the injured worker rather than go to the worker who no doubt needed the money more. Individuals who could not afford a lawyer became a drain on society if they could no longer work, often requiring years of charity to survive.

In the late 1800s, Count Otto von Bismarck came up with an alternative. He pressed through a law that characterized on-the-job injuries as “no fault” events, thereby removing them from the adversarial world of lawsuits. Today, in our country we call programs like his “workers’ compensation programs.” You get injured on the job, you get compensated without having to get all adversarial and prove fault.

Along those same lines of a “no-fault” process, our country (as do most all western countries) maintains the right of “eminent domain.” If the fed needs to build a road through your farm, it gets to take it if it compensates you for the property. You haven’t done anything wrong; there’s no fault when your private property is expropriated by the government for the public good. It’s just our legal way of acknowledging that Mr. Spock was onto something when he said, “The needs of the many outweigh the needs of the few.” The Wrath of Khan (1982). You have been relieved of your property in a non-adversarial manner: a sale, albeit a forced sale.

And, thus, our recommended fix. Do away with the adversarial nature of a firing a civil servant and convert it to an eminent-domain-like taking, based on the following precepts:

  • Every year of acceptable service that an employee completes entitles him to a year of ownership of his position.
  • Individuals who work for the government 20 years have 20 years of entitlement. Therefore, even if she messes up in year 21 and deserves to be fired, she has earned value in the 20 years she did good work.
  • An agency should be able to “buy back” a job from an employee. Just like the farmer required to give up (for pay) the south 40 for construction of a freeway, develop a formula for valuing a job held by a career employee – based on salary and length of service – and allow the government to remove the employee by paying the employee whatever the value is for his job. No need to prove fault. No reason to fight it out in an adversarial nature. The job is worth this much money. Here’s a check. The agency can now use the position for the public good by hiring a replacement.

And now I hear the nay-sayers:

“But Bill, won’t that cost a lot of money?” No, not compared to keeping a bad employee on the payroll through retirement or devoting resources to defend a removal in a risky adversarial forum.

“But don’t we need to ‘punish’ somebody?” No, we learned from Count von Bismarck’s approach that punishment is not necessary to achieve a desirable end, even if fault is somehow involved.

“But won’t this radically change what the civil service is all about?” No, I won’t give you “radical.” However, I’m OK with characterizing this no-fault approach as being a “fundamental” change.

More importantly, though, I think that it is a pragmatic change, a change designed to protect an employee’s rights to an encumbered position by setting a price tag on those rights while simultaneously allowing an agency the flexibility to simply and quickly manage the darned federal workforce. If we are to listen to the voices of many of our elected officials (and those who tried to become elected, but failed), something needs to be done about this quagmire, this swamp.  The civil service is seen by some as a stagnant pool of inefficient workers who cannot be fired.  While we strongly disagree with that view here at FELTG, we have to accept that this is the world in which we live. We need to take steps to deal with it instead of just saying that they are all wrong, we are all right, and things should stay the same as they always have been.

The current oversight of the civil service removal process is adversarial, expensive, and time consuming. Converting to a no-fault buy-back process protects the employee’s rights to the position he has earned while allowing for the prompt secure removal of non-productive individuals. Yes, this approach changes in some ways a fundamental structure of our civil service system.

But maybe a fundamental structural change is exactly what is needed. [email protected]

The Oversight System Quagmire

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By William Wiley, November 29, 2016

Dear President-Elect Trump:

We have so much advice for you here at FELTG. You see, we’ve been messing around with the civil service for nearly 40 years. We’ve figured out a few things because we’ve seen a few things. Here’s another little mess for you to think about cleaning up, after you get that wall going and all those “bad” people deported.

At the heart of a civil service system are built-in protections to prevent managerial overlords from unfairly harming hard-working career federal employees. Put simply, if a civil servant believes that he has been treated unfairly, he should be able to complain to someone with oversight authority who will consider the facts and decide whether the employee has been treated unfairly.

The most serious unfair treatment involves a manager taking away the salary of an employee. Here are the options that an employee has today if she believes that a manager has unfairly taken away part of her salary:

  1. If she believes that the manager was motivated to take away her salary because of her RACE/SEX/AGE/etc., she can file with the US EQUAL EMPLOYMENT OPPORTUNITY COMMISSION.
  2. If she believes that the manager was motivated to take away her salary because of her UNION ACTIVITY, she can file with the FEDERAL LABOR RELATIONS AUTHORITY.
  3. If she believes that the manager was motivated to take away her salary because of her WHISTLEBLOWING ACTIVITY, she can file with the US OFFICE OF SPECIAL COUNSEL.
  4. If she believes that the manager was motivated to take away her salary because of her RIGHTS UNDER A UNION CONTRACT, she can file with an ARBITRATOR.
  5. If she believes that the manager was motivated to take away her salary because of her UNION ACTIVITY, she can file with the FEDERAL LABOR RELATIONS AUTHORITY.
  6. If she believes that the manager was motivated to take away her salary because of her STATUS AS A VETERAN, she can file with the US DEPARTMENT OF LABOR.
  7. If she believes that the manager was motivated to take away her salary in violation of her DUE PROCESS RIGHTS, she can file with the US MERIT SYSTEMS PROTECTION BAORD.
  8. If she believes that the manager has erroneously set her salary low in violation of her RIGHT TO PROPER COMPENSATION, she can file with the US OFFICE OF PERSONNEL MANAGEMENT

Of course, there are some minor tweaks to these employee rights. For example, the union must approve the employee’s invocation of arbitration to resolve a grievance, and there are dollar limits in place for other appeal rights. Still, the bottom line is that there are eight separate independent civil service oversight agencies, each with its own staff, official seal, and unique procedures, that have the responsibility of resolving issues of fairness that arise between a civil servant and his employing agency.

You want more craziness? Most of these oversight agencies are limited as to what they resolve when an employee complains about unfair treatment. They cannot resolve any general mistreatment issues, only issues within their jurisdiction. For example, if an employee complains to EEOC about mistreatment, even if EEOC concludes that the union contract has been violated, it is without the authority to provide the employee any relief. If an employee complains to FLRA about mistreatment, even if FLRA concludes that the employee has been mistreated because of whistleblowing, it is without the authority to provide the employee any relief.

I’m not finished with the craziness. The general view when there are several possible oversight processes is that the employee gets one bite at the apple. Wherever you file first determines which agency and what procedures will control the employee’s complaint. However, if you think about it, an especially creative employee seeking redress of a single personnel action conceivably could complain about parts of the action to all eight oversight entities simultaneously.  I once explained that to a Congressman who responded, “If they’re that smart, they deserve to win their appeal.”

I can’t really argue with the logic of that layperson’s conclusion.

Look, Donald (may I call you Donald?).  The word is that you want to do away with over-regulation, that you want to “drain the swamp” of unnecessary government. We know that you have pipe lines, health care, and trade pacts on your list of to-dos. Well, here’s another one. Now that you see the problem, the solution should be clear. Replace this quagmire with a system that:

  • Makes it drop-dead easy for managers to hold civil servants accountable, and
  • Makes it drop-dead easy for civil servants’ rights to be upheld.

If our little training company can figure this stuff out, so can your administration. [email protected]