A New Goofus and Gallant Navigate the Hatch Act

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By Dan Gephart, February 19, 2020

As a young child, I never dreaded a trip to the doctor’s office because that meant I would get my hands on an issue of Highlights for Children. I’d flip right past that boring Timbertoe family and dive into the latest adventures of Goofus and Gallant.

These cartoon brothers (or were they the same person?) explained right and wrong in the simplest of terms. You know what’s not so simple? Navigating a hyper-partisan presidential election season as a federal employee.

For more than 80 years, the Hatch Act has kept political activity out of the day-to-day running of the federal government. But the Hatch Act is under fire. High-ranking administration officials flaunt the law, and critics claim that the Hatch Act restricts free speech. In an op-ed for Federal News Network, Special Counsel Henry Kerner countered these claims and declared that the Hatch Act remains “foundational to good government.”

I agree with the Special Counsel.

In these unique times, it’s critical that you, your employees and all others who fall under the auspices of the Hatch Act execute your duties as civil servants in a non-partisan manner – and that the taxpayers you serve know they can count on you to do that. It’s not easy, and it’s about to get even more difficult. Super Tuesday is a couple of weeks away, but it’s still 9 long months until Election Day. If you feel like you’re being assaulted by political clatter now, hold on. This racket is getting turned all the way up to 11.

So we’re introducing you to a new Goofus and Gallant to help you understand how you can participate in the political process without violating the Hatch Act. Please welcome Hero and Half-wit.

[Note: These examples are not meant to make any political statements themselves. Also, these examples were created by FELTG, not OSC, but they are based upon OSC guidance. It is the OSC who would have to determine whether to bring a Hatch Act violation before the Merit Systems Protection Board. And those decisions are made on a case-by-case basis. These examples are meant to provide a distinction between various levels of political speech.]

Photographs
  • Hero has the official Presidential photograph of Donald J. Trump framed on her office wall.
  • Half-wit has the official Presidential photograph of Donald J. Trump hanging upside down on her office wall with the words “Impeached” written in big red letters.
  • Hero has had a framed photo of herself and her then-new husband with Michael Bloomberg hanging on her cubicle wall for the last eight years. The photo was taken at her wedding, and the former New York mayor, who is her second cousin, was a guest.
  • Half-wit has a picture of herself and her husband with Joe Biden on her cubicle wall. The photo was taken at a recent Biden campaign event.

It’s not a stretch to conclude that the Hatch Act prohibits federal employees from displaying pictures of political candidates in the federal workplace. There is an exception. However, it’s an awfully difficult bar to reach, as OSC pointed out way back in a 2008 advisory opinion.

“We advise that an employee would not be prohibited from having a photograph of a candidate in his office if all [our emphasis] of the following apply: the photograph was on display in advance of the election season; the employee is in the photograph with the candidate; and the photograph is a personal one.”

In a 2019 advisory opinion, OSC stated that the Hatch Act does not prohibit the display of official photographs of the president in the workplace. However, the photograph must be from an official source – either the White House or the Government Publishing Office. That means no pictures distributed by a political party, the president’s campaign or any other partisan organization. Also, official presidential photographs may not be altered in any way, and must be displayed in a traditional size and manner. Sorry, no life-size cutouts.

Political books and campaign material

  • During her lunch break, Hero quietly reads the latest political screed by a cable news personality in the cafeteria.
  • While away from her desk on lunch break, Half-wit’s computer screen saver flashes Make America Great Again, which her coworkers and some members of the public can see.

OSC says that displaying campaign material qualifies as a political activity, so that’s a big NO on MAGA screen savers. On the other hand, merely reading a book about politics or political candidates while in the federal workplace is not a Hatch Act violation.

Bumper Stickers
  • Hero parks her SUV with its Trump/Pence 2020 bumper sticker in a private garage for which the employee receives a subsidy from her agency.​​​
  • While on federal duty, Half-wit drives her car, which not only has a Trump/Pence 2020 bumper sticker, but also has the front hood covered with a wrap of President Trump giving a thumbs up.

The Hatch Act regs at 5 CFR 734.306 state that an employee may place a partisan political bumper sticker on his personal vehicle and park that vehicle in a federal parking lot or garage. An employee may also park the car with a bumper sticker in a private lot or garage for which the employee receives an agency subsidy.​​​ OSC has even ventured to suggest that two bumper stickers for different candidates is probably OK.

However, a May 2018 advisory letter cautioned against “displaying other partisan political materials, or even bumper stickers, in such a way that makes the vehicle appear to be a campaign mobile.” It’s my opinion, that a hood wrap is probably crossing that line, and without question, that’s the case when the car is being used while on duty. Oh, and if you don’t think car wraps like Half-wit’s exist, you should spend some time in Florida.

Email
  • Hero receives an email on her work account inviting her to contribute to Pete Buttigieg’s campaign. She immediately deletes the email.
  • Half-wit clicks on the link in the Pete Buttigieg Campaign email, and then forwards the email to her co-workers.

This is a real Hatch Act danger area. The definition of a partisan political email is broad – it’s any email that is directed at the success or failure of a partisan group or candidate in a partisan race. Simply receiving a partisan political email while on duty does not violate the Hatch Act. If that happens, hit delete. Once you forward the email, you’ve committed a Hatch Act violation.

Social media
  • At home, while no longer on duty, Hero likes a friend’s Facebook post expressing anger at Senator Majority Leader Mitch McConnell’s failure to act on specific legislation. The post suggests that friends in Kentucky vote for McConnell’s competitor Amy McGrath.
  • At home while no longer on duty, Half-wit refers to her official government bio whenever she posts on her Twitter account titled Moscow Mitch, which regularly suggests that followers contribute to Amy McGrath’s 2020 Senate campaign.

Social media complicated the Hatch Act so much that OSC had to create a whole new set of guidance several years ago. With time, those guidelines have started to make a lot of sense. Whether you are a less-restricted or further-restricted employee, you may express your opinions about a partisan group or candidate by posting, liking, sharing, tweeting or retweeting. However, you cannot:

  • Engage in political activity on social media while on duty or in the workplace.
  • Refer to your official title or position while engaged in political activity.
  • Suggest that anyone make political contributions.

Further-restricted employees are also cautioned against posting and linking to a partisan group or candidate’s Facebook or Twitter accounts, as well as sharing or retweeting content from those accounts.

For more information, I suggest you read our recent interview with the OSC Hatch Act Unit and visit the OSC website where there is a lot of guidance. And if you can’t find an answer, no problem. All you need to do is ask. If you are seeking advice about your political activity or the activity of another employee, you may request an advisory opinion from OSC by calling (800) 854-2824 or (202) 804-7002. You can also email the Unit at [email protected].

[email protected]

Takeaways from MSPB’s FY 2019 Annual Report: Agencies Continue to Win Appeals, but Don’t Litigate Very Many Cases

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By Deborah Hopkins, February 19, 2020

A couple of weeks ago, MSPB issued its Annual Report for FY 2019. This report is similar to a “State of the MSPB” document, which highlights the priorities, strategies, and numbers from the previous fiscal year. Because we have no sitting members of the MSPB for the first time in history – and it’s been almost a year since the Board has been vacant – the report is more abbreviated than it has been in years past. But there’s still some interesting information we at FELTG want to share with you, in case you haven’t had a chance to look at the report yet.

As of the end of FY 2019, MSPB had 2,378 Petitions for Review (PFRs) pending at HQ. That was the end of September, of course. As of last week, MSPB’s website showed more than 2,600 pending PFRs. The backlog has been growing for more than three years and will continue to grow until the Senate votes to confirm the nominees, who have been patiently waiting – two of the three for nearly two years.

The Administrative Judges (AJs) in the regional and field offices continue to hold hearings and review cases. Last FY, they issued 5,112 decisions. Of those, 4,893 were initial appeals, 190 were addendum cases, and 29 were stay requests. Let’s look at a further breakdown of these numbers:

  • 2,092 of the AJ decisions involved adverse actions.
  • 388 cases were probationer removals. (As most FELTG readers know, probationers have limited Board appeal rights. If you didn’t know that, attend MSPB Law Week in March and we’ll tell you all about it.)
  • 113 cases involved performance-related removals or demotions.
  • 490 were Individual Right of Action appeals – with most of those, if not all, undoubtedly being appeals of alleged whistleblower reprisal.
  • 61 appeals were related to suitability.
  • USERRA and VEOA appeals combined for 213 appeals.

Another interesting statistic involves settlement. In years past, around 60 percent of MSPB appeals government-wide were settled before they ever went to hearing. Of course, some agencies tend to settle more often, and others less frequently, but overall the majority of cases still settled. I often get asked what that looks like, and why agencies settle cases after the disciplinary action has already been decided. Well, it costs the government time and money to litigate a case in front of an MSPB AJ, and if the agency can offer the employee something (usually a sum of money) in order to resolve the appeal today, then it often will.

This decision to settle usually comes from someone further up the chain of command, and in many cases includes the employee’s agreement that they won’t apply for another job at the agency again. Whether you like it or not, that’s how the system works.

Well, last year we had the lowest number of post-appeal settlements I can ever recall seeing: only 47 percent of cases settled after the appeal was filed to MSPB. A likely reason for this is Executive Order 13839, which went into effect in 2018 and removed the agency’s authority to take discipline out of an employee’s official record. A clean record is often the determining factor in getting an employee to agree to withdraw an appeal and go away, so it’s not surprising to see this number decrease so significantly.

Of the 915 appeals that went to hearing (in other words, they weren’t settled, withdrawn, dismissed, or otherwise disposed of) and were adjudicated on the merits, agency actions were upheld 85% of the time — a 2% increase from FY2018. Only 2% of agency actions were mitigated and about 12% were overturned.

So, who went to hearing the most? By the numbers, the VA far and away adjudicated the most MSPB appeals (161), more than doubling the number of its closest followers, Army and DHS. Not far off the podium were DOD, USPS, Navy, and Air Force, followed by  DoJ, USDA and Treasury. Considering the size of the top three agencies, this is not entirely surprising as one could assume the number of hearings is related to the size of the workforce. However, several decent-sized Departments only adjudicated appeals in the single or low-double digits:

  • Department of Health and Human Services: 15 appeals; 79,000 employees
  • Department of Transportation: 15 appeals, 58,000 employees
  • Department of Commerce: 14 appeals; 46,000 employees
  • Department of the Interior: 12 appeals; 70,000 employees
  • Department of Labor: 4 appeals; 17,000 employees
  • Department of Energy: 3 appeals; 14,000 civilian employees
  • Department of Housing and Urban Development: 3 appeals; 8,000 employees

The fact that some agencies adjudicated so few appeals is not necessarily directly related to the number of personnel actions taken. A number of Departments employ groups of people who do not fall under MSPB jurisdiction – for example, Department of Energy employs more than 100,000 contractors who do not have MSPB appeal rights. Some agencies have very high settlement rates, and other agencies see very few employees file an appeal of a removal. That said, it is true that some agencies just don’t take action against most employees who engage in misconduct or perform at an unacceptable level. I share these numbers not to point fingers, because these numbers standing alone don’t tell us the complete story, but as a way of starting the conversation about accountability in the federal government.

There’s lots more in the report including a statement on the lack of a quorum (or any members at all) and summaries of important Federal Circuit decisions. [email protected]

The Supervisor Survival Series: Talk to Employees Regularly

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February 19, 2020

This may seem obvious, but it’s worth stating: Supervisors and managers should have regular conversations with their employees throughout the appraisal year. In the course of those conversations, supervisors should provide feedback on the employee’s performance and conduct – positive and negative. The benefits to regular interactions are too many to list here but include improved employee morale, clarity of provided expectations, an increase in employee willingness to be honest with the supervisor, and a better understanding of the challenges employees are facing.

Standards that Actually Measure Performance – A Look at Whistleblower Protection

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By Barbara Haga, February 19, 2020

Before I talk about requirements related to whistleblower protection and performance plans, I need to talk about the reason behind the Congress’ action in the Dr. Chris Kirkpatrick Whistleblower Protection Act of 2017. The events leading to the law’s passage are a tragedy, and I don’t think anyone could suggest there shouldn’t have been action to deal with the reprisal that took place. However, agencies would be much better off with a different approach than incorporating it in performance plans.

Dr. Chris Kirkpatrick

Dr. Kirkpatrick was a 38-year old clinical psychologist at the Tomah Veterans Affairs Medical Center in Wisconsin.  According to his obituary, Dr. Kirkpatrick died on July 14, 2009. In a detailed story published by USA Today on April 12, 2015, details are filled in regarding Dr. Kirkpatrick’s employment.

Dr. Kirkpatrick completed his doctorate in clinical psychology in August 2008 and was picked up on two-year appointment a month later. This was a conditional position that could have become permanent if he passed the necessary exams and obtained his license.  Prior to his appointment, Kirkpatrick completed an internship at a VA facility in Chicago where he had worked with patients with PTSD and other conditions.

According to USA Today,  an AFGE rep was present for the meetings with management we are about to discuss. Kirkpatrick received a reprimand in early 2009.  He had raised in a providers’ meeting that his patients were too heavily medicated for them to be properly treated. A physician’s assistant, who was in the meeting and had prescribed some of that medication, reported this to the hospital chief of staff. The reprimand said Dr. Kirkpatrick should not further criticize the PA, should focus on his own work, and should not comment on the use of medications as that was not part of his practice.

Three months later, Dr. Kirkpatrick reported that a veteran had threatened him and his dog. Although a treatment team recommended that the veteran be discharged, that didn’t occur. Kirkpatrick missed two days of work thereafter.  On the third day, he returned to duty. He was fired that morning. The charges included taking leave on Fridays and Mondays, improperly recording a 90-minute absence, and two other minor issues.

After receiving the termination notice, Dr. Kirkpatrick asked the union representative to get a support system so that no one else would have to go through what he did. He went home, and shot himself in the head, and died.

Legislation

Sen. Ron Johnson introduced a bill intended to prevent such situations in the future in March 2017. It easily moved through Congress and was signed on Oct. 26, 2017.

A summary about the legislation posted on govtrack provides further information about the situation at the Tomah Medical Center:

A VA investigation — triggered earlier this year by the revelation that a veteran died at Tomah last August from “mixed drug toxicity” — found Kirkpatrick’s concerns had been warranted. Tomah veterans were 2½ times more likely to get high doses of opiates than the national average. Further investigations found retaliation against whistleblowers has become a major problem at VA facilities across the country. The U.S. Office of Special Counsel is investigating 110 retaliation claims from whistleblowers in 38 states and the District of Columbia.

The bill attempts to stop whistleblower retaliation in several ways; the govtrack summary includes this description:

The bill provides enhanced protections and expedites investigations of instances in which probationary federal employees are fired for whistleblowing; enacts reforms to ensure that managers who retaliate against whistleblowers are held accountable; provides the Office of Special Counsel with adequate access to information from federal agencies to allow for complete investigations and better protect whistleblowers; ensures that all federal employees are informed of their rights as whistleblowers and provides training to managers on protections; and establishes measures to hold VA employees that improperly access the medical records of their fellow VA employees accountable.

The Kirkpatrick Act was included in the NDAA for FY 2018.  It amends provisions in both Chapters 43 and 75.

What’s Wrong?

The change to 5 USC 4302(b)(2) requires agencies to set performance standards that require supervisors to:

  • Respond constructively when employees make disclosures covered under either subparagraph (A) or (B) of 5 USC 2302(b)(8),
  • Take responsible actions to resolve such disclosures, and
  • Foster an environment in which employees feel comfortable making such disclosures to supervisory employees or appropriate authorities.

The suggestion that this should be handled under performance to me shows a lack of understanding of the process.  By the time the superiors of the offending supervisor find out that a supervisor engaged in such behavior, it is likely well after the fact. If you were taking the position that this was unacceptable performance and proceeding under Chapter 43, you would have to do a demonstration period (DP) no matter how long it had been since the act of reprisal. If the supervisor didn’t reprise again during the DP or within one year of the beginning of the DP, there’s no formal performance action.

But let’s look at a more basic issue: What are demonstration periods supposed to be for? To provide assistance on performance to ensure that an employee can come out of the period with the skills to perform successfully. Do you think that those who take reprisal action need to be taught that what they did was wrong? Shouldn’t she know that taking disciplinary action against someone who has pointed out wrongdoing is not tolerated and the manager acts at her peril when she does it?  This is similar to the matter of protecting classified material that I talked about last month; it is a rule that must be followed — and following it is a condition of staying in the job. In this case, reprisal is a prohibited personnel practice that is already illegal.

Another concern is how will a senior manager ever be able to assess this? If there are no disclosures, then it doesn’t apply. If the whistleblower never complains to higher management, they will never know that the manager didn’t respond constructively or take a responsible action.  And how does a senior manager assess whether employees are “comfortable” in making disclosures?

What happened in Dr. Kirkpatrick’s situation is horrible, but the tools to take appropriate action to stop this were already there.  Adding this to appraisals is just form over substance.

Tips From the Other Side: February 2020

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By Meghan Droste, February 19, 2020

When counseling clients on how to proceed in their cases, I recommend requesting a hearing rather than a Final Agency Decision (FAD) far more often than not. Why? Well, as I point out to my clients, a FAD is an agency deciding whether or not it violated the law, and how often do any of us want to publicly admit that we did something wrong? It often feels like a foregone conclusion that no matter the evidence, the agency will issue a FAD finding no liability.

I get it. Although the offices issuing FADs are, of course, intended to be neutral, and I’m sure the people drafting FADs make every effort to be unbiased – and many do a great job, at the end of the day, the agency is rendering a decision based on (sometimes limited) information collected by the agency.

This month my tip to you is to recognize that, in some cases, the evidence compels a decision in favor of the complainant.

The recent decision in Felton A. v. U.S. Postal Service, EEOC App. No. 0120182134 (Dec. 17, 2019) is a great example of when the agency should not have issued a FAD finding in its own favor. The complainant alleged that the agency discriminated against him when it barred him from entering an agency facility while representing another agency employee in the coworker’s EEO complaint. According to the complainant, his supervisor told his union steward that the complainant was not permitted in the facility because the complainant was on the “Threat Assessment List” due to his PTSD.

At various times during the investigation, the supervisor denied that a Threat Assessment List existed and testified that the complainant could not enter the facility due to a Threat Assessment.  The supervisor also denied being aware of the complainant’s disability, despite documents in the record establishing that the supervisor had knowledge prior to barring the complainant from entering. Finally, the supervisor could not specifically say what she said to the union steward regarding the complainant. The agency failed to interview the union steward in its investigation, leaving the record without a clear picture of the crucial conversation.

The supervisor’s internally inconsistent testimony, which directly contradicted the documents, should have raised a red flag for the agency when drafting the FAD. The lack of testimony from the union steward also should have been an issue. The agency would have been better served to order a supplemental investigation rather than issuing a FAD based on an incomplete record.  Ultimately the Commission reversed the FAD and entered a finding of discrimination, ordering the agency to conduct a supplemental investigation on damages.

When drafting FADs, I encourage you to look critically at the record and issue findings of liability when supported by the report of investigation.  [email protected]

And Now a Word With … Dr. Anthony Marchese

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By Dan Gephart, February 11, 2020FELTG Instructor Dr. Anthony Marchese

The third page of the Partnership for Public Service report released last week explicitly hinged the federal workforce’s future success on agencies’ ability to do four things:

  • Collaborate internally.
  • Work closely together with other agencies.
  • Engage the public.
  • Establish connections with stakeholders from outside government.

Unfortunately, as the Partnership’s report makes clear, those are not four areas where the federal government has a particularly strong track record.

“That’s a tall order,” said Dr. Anthony Marchese (pictured above), the author of DESIGN: An Owner’s Manual for Learning, Living, and Leading with Purpose, as he read through the report’s four recommendations.

Dr. Marchese teaches FELTG’s Leadership Training Courses. That includes the course Connecting, Collaborating, and Creating: Mastering the Art of Meaningful Relationships, which, in light of the Partnership’s report, should probably be mandatory training for all supervisors and managers. [Note: All of FELTG’s Leadership Training Courses align with the Office of Personnel Management’s Executive Core Qualifications.]

“The biggest barrier to collaboration is the absence of trust,” Marchese said. “Healthy collaboration occurs when people work together with others to achieve a common purpose or shared goal. If trust is compromised, communication/information will be limited, people will possess a level of competitive antagonism toward others across the agency which results in battles over who receives credit for successes, fighting over scarce resources, inactive listening, and the reinforcement of existing organizational silos. Leaders who focus first on how to build trust (interpersonal – among employees and supervisors and interdepartmental – across the agency) will drastically increase the likelihood of collaboration.”

If collaboration is the largest boulder holding us back, then communication is the large boulder the size of a small boulder. It’s particularly challenging for supervisors.

“A recent Harvard study revealed that two-thirds of managers are uncomfortable talking with their staff,” Marchese said. “The discomfort wasn’t over having difficult conversations, leading performance reviews, or convincing an employee to stay. Managers simply reported being uncomfortable communicating in general.”

DG: Is that why so many federal supervisors struggle to hold their poor performers accountable?

AM: Both the federal and private sectors often promote great technical experts to supervisory roles without demonstrating key behaviors that are necessary for success. Leading conversations with employees is one of the most important activities of the supervisor. Even those of us with many years of experience may feel uncomfortable having a conversation with a poor performer. But, with thoughtful preparation, there is much that can be done to increase the likelihood of a positive outcome. Two things come to mind.

First, structured conversations lead to better conversations. The second thing is that as supervisors, we need to better understand how people can change behavior or grow their expertise. It is a lot easier to tell someone, “Change X – or else” versus helping to set this poor performer up for success by understanding and using the tools of the “Performance Paradigm.” People learn differently, people are motivated differently, people require different types of reinforcement and accountability.

DG: The country is divided these days, and that divisiveness often causes problems in the workplace. What advice would you give to someone who is leading people with wildly divergent opinions and beliefs?

AM: If I had a choice between a team of like-minded members versus one filled with vastly different types of individuals, I would choose the diverse team every time. A team with “wildly divergent opinions and beliefs” requires more time and patience to lead but with a thoughtful strategy, the outcomes can be incredibly impressive. Think about a team meeting in which the leader has charged the team with the task of solving a complex problem. The team with like-minded members will frame the challenge as well as the course of action quite similarly. The meeting will produce a predictable outcome.

On the other hand, a diverse team will probably have a spirited discussion with multiple perspectives, some healthy debate, and quite possibly, reach a remarkable outcome. Leaders who find themselves leading a diverse team should seek agreement on core outcomes/results, what we call “The What,” also the easiest part. Then create a member-centric strategy that focuses on “The How.” This is where most teams fail. Consider the following:

  • Openly discuss and celebrate team differences and explore implications for synergy and conflict.
  • Create “rules of engagement” for working with different members (behavioral styles, strengths, personalities).
  • Build Safety: Encourage members to speak up, actively listen, not go silent, and avoid multitasking (phones/laptops).
  • Check-in periodically: How are we working together? What is working well? Not so well? What needs to change? Remind the group of the core outcomes/results that everyone is after.
  • Conduct an end-of-project debrief. Celebrate your accomplishments and retrace the process that got you there. What did we learn from this experience?

DG: What’s the one skill keeping most managers from being effective leaders?

AM: Without any reservation, the leading skill most supervisors lack is the ability to navigate and engage a diverse workforce. There is significant evidence indicating that three-quarters of those with whom we work are different from ourselves. They process information differently. They frame success differently. They communicate and collaborate differently. They respond to conflict differently. Different isn’t better or worse. It’s just different. Unless a leader is skilled at understanding and engaging her own behavioral style and those of her employees, there is a strong likelihood that a tremendous amount of time will be spent using a trial/error approach to learning how to work together. This causes frustration, wastes time and resources, and even encourages early exits. Leaders need to know their people.

DG: An employee has just been promoted and will now be supervising her former coworkers. What advice would give you her as she prepares for her first day leading her former colleagues?

AM: First, breathe. You don’t have to have everything figured out on day one. Making the transition from individual contributor to successful supervisor takes time. The biggest pressure most new supervisors feel is self-induced. As you stand in front of the mirror, ready to head out to your first day, pause for a moment and smile. You can “do anything” but you can’t “do everything.” Your first day might feel a bit awkward. Your coworkers may be feeling the same thing, They might be asking themselves, “How is she going to act now that she is a manager?” “Will we still be friends?” “How are things going to change?” Here are some suggestions to help you have a great first day:

  • Be yourself: While your office may have moved locations, your relationships still exist as they did yesterday. Talk to people. Be visible. Keep your door open.
  • Listen: People are going to be curious about how things are going to change. As they inquire, let them know that you are going to spend a few weeks asking questions, getting to know the agency and its priorities, and even talking to a mentor. You want to do your homework first. Let your coworkers know that you are open to ideas.
  • Read Boundaries for Leaders: Results, Relationships, and Being Ridiculously in Charge by Henry Cloud. As you read the book, conduct a self assessment. Where are your areas of strength? In what areas might you be vulnerable?
  • Organize your observations/priorities. You will start to notice new things, even on Day One. Use your phone, tablet, or laptop to keep a running list of ideas. Think about organizing your thoughts into three categories: Leading Myself, Leading My Team, Leading the Agency. At the end of the week (or two), talk with your own manager about what you observed and establish priorities for the year.
  • Breathe.

[email protected].

Not Commandments, but 5 Suggestions for Federal Employment Law Practitioners

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By William Wiley, February 4, 2020

A few years ago, someone sent me a list of “Ten Commandments” for those who do not subscribe to a particular religion. From a philosophical aspect, I found it interesting and applicable in a number of situations in life. With some paraphrasing, some apply to the field of federal employment law. Since we here at FELTG can’t command anyone to do anything, I thought I’d send these along as suggestions, reducing them to five, in the spirit of the thrifty thought that we teach in our legal writing programs:

1 – Be open-minded and willing to alter your beliefs when you are confronted with new evidence or argument.

2 – Strive to understand what is most likely to be the correct approach, rather than believing what you wish to be the correct approach.

3 – Legal research and formal training are the best ways to understand the field of federal employment law.

4 – Every supervisor has the right to decide the best course of action given a particular situation, as long as that decision is allowable by law.

5 – Many times in our business, there is no one right way to accomplish an objective.

I am reminded of these on occasion when someone in a class or by email asks me to explain something I’ve said in a training session. As our recurrent readers know, here at FELTG, we love getting your questions. It feels good to know that we might be contributing to a more-efficient civil service.

The best request for an explanation goes something like this:

“Hey, Bill. You are super-smart and very attractive. I get goose bumps when I read your insightful comments in an article. But I’m having a little trouble understanding your thought regarding blah, blah, blah, and wonder if you could explain it in more detail?”

“Sure, you poor under-educated newbie. I’d be delighted to impart to you a portion of the wisdom I have accumulated over the eons I have been in this business. Regarding blah, blah, blah, the answer which you seek is …”

“Wow, thanks, Bill! I’ve got it now.”

Frankly, I don’t necessarily believe that the questioner has “got it.” As far as I know, she may just be being nice, continuing to adhere to her misdirected view of the issue, but realizing that further exchange on the matter will do neither of us any good. Contrary to what some might believe, I don’t really care if anyone agrees with me. Here at FELTG, we don’t see it as our job to convince our participants of anything. Rather, it is our job to teach the conclusions we have reached based on many years of experience and study, and let you the student decide whether you agree or disagree. If you agree, fine. If you disagree, that’s fine, as well. Continue on your (misdirected) ways and let the consequences be what they may.

On rare occasions, however, we will bump into a participant who does see things this way, and who apparently sees it a responsibility to convince us that one of our instructors has said something that is wrong. Here’s an example of how one of those discussions goes:

[Me]: “In this situation, I’d suggest that you do X based on Y authority.”

[Participant]: “X is wrong. Z is the right answer because:

1 – I’ve always done Z.

2 – I was taught to do Z in a class I took years ago.

3 – I called my headquarters and they said that Z is the right answer.

4 – I heard a judge say that Z is correct.

5 – OPM regulations don’t say you can do X.

6 – I heard about a case in which the agency did X and it lost.

7 – I’ve been in this business as long as you have, and I’ve concluded that X is wrong.

8 – (And my favorite …) I don’t like X.”

Oh, poor participant. If only he would adopt the Five Suggestions, he might actually improve the performance of his craft. Be open-minded that there might be a better way to do things. Just because he’s always done something one way doesn’t mean it’s the only way. Look for more efficient approaches, not just the approach that he believes to be best. Consider new evidence, that being the conclusion of our instructor based on a lot of training and experience. Research the case law. Read the statute. And don’t rely on some case you read about in the newspaper.

Here are a few sample issues that have caused recent controversy, accompanied by our FELTG position on the matter:

  • An agency can unilaterally suspend an employee without taking away his pay and then count the suspension as progressive discipline.

FELTG: An agency and an employee can enter into an agreement where a “paper” suspension equates to a prior act of discipline for progressive discipline purposes. However, without such an agreement the law requires there to be a loss of pay for there to be a suspension cognizant under Chapter 75.

  • An agency needs a lot of proof of unacceptable performance to initiate a Performance Demonstration Period (DP, formerly a PIP).

FELTG: An agency has to reach a judgment that the employee’s performance is unacceptable before initiating a DP, but it will not have to prove the DP was warranted in an appeal to the Board of an eventual removal for DP failure.

  • Douglas factors should not be included in the proposal letter, only the decision letter.

FELTG: The employee is entitled to have the Douglas factors in the proposal letter according to the Douglas decision itself, and to satisfy due process.

If you disagree with any of these, that’s OK here. We’d just hope that you could learn to keep an open mind and do the research yourself for support of an alternative answer. If you’ll do that, we’ll keep answering your questions as best we can based on our experience and education. Join me and FELTG President Deborah Hopkins for a spirited week of discussion during the next MSPB Law Week March 9-13 in Washington, DC. [email protected]

What’ll It Be, Mack? The Easy Way, or the Hard Way?

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By Deborah Hopkins, January 21, 2020

My colleague Bill Wiley has long preached the value of taking the easy route vs. the hard route. An example he has often used in our Washington, DC classes goes something like this:

If you’re in Washington, DC, and you want to get to Baltimore, the fastest and most direct way to get there is to take I-95 north. Of course, there are other ways to get to Baltimore from DC. You could hop on I-66 and head out toward West Virginia, come up north across western Maryland and on into central Pennsylvania, then drive east on the Pennsylvania turnpike before heading to Baltimore south on I-95 via Philadelphia. But why would you take the long route and waste all that time and fuel, when you could be there in less than an hour by taking the quickest route?

I want to look at  a 2019 Federal Circuit decision with this easy-vs-hard approach in mind. The case involves a VA psychologist named Eric Cerwonka who was removed from his position as a Clinical Psychologist at a VA medical center in Alexandria, La. Cerwonka appealed his removal to the MSPB and ultimately petitioned for review by the Federal Circuit.

Here’s what happened: The state of Louisiana took away Cerwonka’s license to practice for “clear ethical violations and a repeated failure to follow the rules and regulations binding upon [him] as a psychologist.” Once the VA learned Cerwonka’s license had been revoked, it proposed his removal based on one charge: failure to maintain a current license, in violation of 38 U.S.C. § 7402(f). The statute provides that a psychologist “may not be employed” by the VA if even one of his licenses is terminated for cause.

Cerwonka appealed to Louisiana over the license revocation. The state temporarily reinstated his license, as is typical procedure in appeals of license revocations. Cerwonka appealed his removal to the MSPB and argued that the subsequent reinstatement of his license meant the VA did not have cause to remove him because he once again had his license to practice.

The Board’s role in these cases – and thus the Federal Circuit’s jurisdiction in appeals and PFRs – is limited to reviewing Federal agency personnel actions and determining whether those actions were proper at the time they were made. See 5 C.F.R. § 1201.4(f) (defining the term “appeal” to the Board as “[a] request for review of an agency action”).

In the initial decision, the AJ concluded that the agency action under review — Cerwonka’s removal — was proper at the time it was made. Because Cerwonka’s Louisiana license had been revoked, for cause, at the time the agency removed him from employment, he did not have a license on the day the agency issued his removal, and Cerwonka did not present any evidence to refute this fact. The express terms of the statute compels removal and does not permit the VA to consider subsequent events, such as the reinstatement of a license at a later date. The Federal Circuit put it this way:

To the extent Cerwonka is arguing that the Board must consider subsequent events or that there should be a waiting period prior to removal to give an opportunity for an appeal, those arguments find no support in the statute, and we decline Cerwonka’s invitation to read exceptions into the express terms of 38 U.S.C. § 7402(f).

Which brings me to the point of this article. The agency could have drafted up a fancy proposed removal with perhaps multiple charges revealing Cerwonka’s misconduct and how the ethical violations he engaged in caused harm to the agency. It could have proven the facts, and the elements of each charge, by a preponderance of the evidence. And it could have justified the removal penalty by showing that because Cerwonka’s ethics were called into question, he was no longer trustworthy in his role and, accordingly, the agency lost confidence is his ability to do his job. Then if Cerwonka had appealed to the MSPB, the agency could have defended its charges. As we teach in FELTG training classes, doing that is not nearly as difficult as you might think.

However, in this case, the agency made a smart call. Rather than try to build a case over misconduct, it took an even easier and more efficient route by proposing removal for failure to maintain a current license:

  1. A license is required to have this job today;
  2. Your license is revoked as of today;
  3. No license = you’re fired.

Get where you want to be the easiest way. Take I-95 to Baltimore – or better yet take the MARC or Amtrak – rather than go the circuitous route. Make your life easier, when you can. [email protected]

Creating a Thriving Work Environment in 2020: It’s Not a Laughing Matter

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By Dan Gephart, January 14, 2020

Chip is a hard-working and successful comedian. A few years ago, he was named the funniest stand-up comic in Philadelphia. He moved to Los Angeles and wrote for television shows. He returned to the East Coast and grew his reputation for hilarious headline sets, working an impressive array of comedy clubs.

On this recent January evening, however, he was telling jokes on a tiny stage in the back room of a South Jersey Pizzeria Uno.

A camera light flashed in Chip’s eyes. He saw the culprit, and reminded her of his pre-set warning against taking pictures, politely explaining how the flashes are distracting. The slightly annoyed audience member coldly told Chip she wasn’t even paying attention to his set. She was taking a picture of her dessert.

Sometimes you’re writing jokes for television stars. And then suddenly you find yourself competing for attention with a subpar pizza chain’s deep-dish sundae.

So how are things going in your job so far this year?

If you’re like most, you started the new year with resolutions, goals, and promises to improve your professional life. However, while we control whether we’re going to get our butt off the couch and our legs onto that treadmill, there are certain factors in the workplace that keep us from becoming our best professional selves.

As supervisors and HR professionals, you have some control over whether your workplace environment is one in which you, your colleagues, and your employees can thrive. Here are three specific actions you can take that will help your employees reach their professional goals and resolutions in 2020:

  1. Don’t ignore toxic employees

We discuss the 10-80-10 rule in some of our training classes. It’s a generality, sure, but attendees tell us it’s right on target. Here’s the rule: Approximately 10 percent of employees are rock stars – the people who get their work done really well before it’s due. They make your job easier and fun.

About 80 percent of employees are just fine, maybe not spectacular, but they get the job done and they don’t give you too many problems.

And then there’s the final 10 percent.

Some are just poor performers. But many of them are toxic employees. Their bad habits and de-energizing destruction take up the majority of your time and energy. And they generate noxious stress, which weaves its way into your life outside of work. If you ever had a toxic employee under your charge, you likely brought that stress home with you. Toxic employees do not wash off easily. And it’s not only you being served that daily dose of trauma. Toxic employees impact everybody in the workplace.

If you want to keep your rock stars and get the most from the 80 percenters, you must hold toxic employees accountable. They must meet the acceptable level on their performance standards. Their misconduct must be addressed immediately. Unfortunately, according to OPM’s Federal Employee Viewpoint Survey of every year since I’ve been reading them, that’s not happening much.

FELTG is there for you: Join us next month in Puerto Rico or April in Seattle for our flagship course Developing & Defending Discipline: Holding Federal Employees Accountable. Or contact me about bringing this class or another FELTG favorite, UnCivil Servant: Holding Employees Accountable for Performance and Conduct, to your agency.

  1. Set the tone on EEO issues.

Few can thrive in a workplace where employees feel unsafe, disrespected, or ignored based on their color, gender, religion, sexual orientation, disability status, or other EEO category.

As we’ve learned from the #MeToo movement, it’s not enough to simply state that you won’t tolerate harassment or discrimination. You need to take clear and distinct actions to prevent harassment and discrimination. One of those actions needs to be giving supervisors and employees the skills and knowledge to respond quickly, effectively, and appropriately when they see any inappropriate behavior, even if it doesn’t rise to the legal level of harassment or discrimination.

For years, many people in EEO-protected categories have done incredible work despite workplaces that failed to recognize their worth and dignity. Taking down those barriers requires more than lip service. It requires action. And it requires strong leadership.

Join us for EEOC Law Week in April. Or contact me to learn more about the many onsite EEO training programs we offer, including Preventing and Correcting Sexual Harassment in the Federal Workplace or Defending Against Discrimination Complaints: The Supervisor’s Role in EEO.

  1. And, finally, get some darn sleep.

More than a decade ago, the Centers for Disease Control and Prevention called insufficient sleep “a national health epidemic.” With the ubiquity of smart phones and the distraction of TV binge-watching, this epidemic has gotten worse.

I find it odd how so many people revere those who can function on little sleep. A few years ago, Forbes Magazine profiled 19 tech giants and celebrities who thrive on much fewer than 8 hours of slumber, dubbing them the “sleep elite.” At the time of his presidency, much was made of Bill Clinton’s ability to lead the free world while snoozing just a few hours each night. That’s cool, but it’s not something to emulate. Very few of us fall into the sleep elite category.

When is the last time you had a rough night of sleep? If it wasn’t yesterday, it was likely in the last week or month. I’m guessing you didn’t thrive the next day. Recent studies suggest you probably had trouble concentrating at work, and that lack of focus resulted in more errors than usual. Whether you recognized it or not, your emotional processing was severely hampered, too. And that’s if you even got to work. Other studies claim that insufficient sleep leads to a 20-percent higher chance of getting in a car accident.

So put that phone down at least an hour before you decide to close your eyes for the evening. Make that afternoon drink a decaf. And try to fall asleep and wake the same time every day – even on days off.

It’s time you took the lead in creating a workplace environment in which your employees thrive. Otherwise, we might as well all be working the back room at a South Jersey Pizzeria Uno. [email protected]

The Great Debate: Douglas in the Proposal or Douglas in the Decision?

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By Deborah Hopkins, January 14, 2020

When Bill Wiley and I teach MSPB Law Week (next held in Washington, DC March 9-13), we get a lot of great questions.

And occasionally, we get pushback from an attendee on some of our practice methods. One hot topic that always generates discussion – and the occasional challenge – is where to use the Douglas Factors analysis in a removal case.

We have written about this topic multiple times, because it’s a topic people always have questions about. So it’s a fitting discussion for the first newsletter of the year, and the decade.

At FELTG, our approach is to attach a Douglas Factors Worksheet to the proposal notice. We don’t just do that because we think we’re smart; we do that because the law requires us to give the employee the reasons relied upon for the proposed action, and attaching said worksheet ensures we comply with the law, every single time.

Here’s a direct quote from Douglas v. VA, 5 MSPR 280 (1981):

[A]ggravating factors on which the agency intends to rely for imposition of an enhanced penalty, such as a prior disciplinary record, should be included in the advance notice of charges so that the employee will have a fair opportunity to respond to those alleged factors …

That’s right, all the way back in 1981 when the ink was barely dry on the Civil Service Reform Act, the famous Douglas decision laid out 12 factors to consider in determining a penalty for misconduct, and the aggravating factors (those factors which work against the employee and weigh in favor of a harsher penalty) must be included in the proposal notice.

And who is responsible for the proposal notice? The Proposing Official (PO), of course, usually in conjunction with an advisor from L/ER or OGC. The proposal letter, along with any attachments, such as a Douglas Factors Worksheet, is what gives the employee the “advance notice” required by the Douglas decision.

Sometimes a person in our class wants to get into a debate about why we include all 12 factors in the proposal when Douglas only requires the employee to be given notice of the aggravating factors.

It is true that the legal minimum is to give the employee only the aggravating factors, but at FELTG this is one of the few times we go beyond the legal minimum. We don’t want to get into a fight about whether a particular factor is aggravating or mitigating, so we include them all upfront.

One of the examples we use in class to illustrate this principle is length of service. Let’s say the employee has worked for your agency for nine years. Is that length of service aggravating or mitigating? The PO might think it’s mitigating, but if the Deciding Official (DO) thinks it’s aggravating and we haven’t given the employee the “Length of Service” factor in the proposal notice, we run the risk of a due process violation. In addition, the Federal Circuit has highlighted that the employee must be put on notice of any penalty factors on which the Board is going to rely in making its decision. Ward v. USPS, No. 2010-3021 (Fed. Cir. 2011).

If the Proposal Letter contains only three or four aggravating factors, and the Deciding Official does a full Douglas analysis and decides there’s a fifth aggravating factor and does not provide notice to the employee, that DO has committed a due process violation because the employee has now been denied his legal right to fully defend himself. That due process violation is an automatic loser, regardless of the evidence on the merits.

The safest thing to do is to include all the Douglas factors in the proposal. Then we don’t have to make the call on whether a factor that could go either way is more aggravating or mitigating. Makes sense, doesn’t it?

Here’s the process:

  1. Employee is given the proposal notice, an attached Douglas Factors Worksheet, and any evidence relied upon.
  2. Employee responds to the Deciding Official based on the proposal notice and its attachments.
  3. Deciding Official makes a decision based only on the proposal, which includes the Douglas Factors worksheet, and the employee’s response.

As discussed above, the Douglas decision says the employee gets notice of the factors relied upon when the proposal is made – not the decision. So, if the DO agrees with the Douglas analysis in the proposal, there’s no need to add a word to the penalty assessment. Her decision letter will just say: “I have considered the penalty assessment factor analysis contained in the Proposal Letter, and I concur.” No new information, no due process violation.

If the DO disagrees is some way with the Douglas analysis in the proposal, or comes across new information that was not in the proposal or the employee’s response (let’s say she gets an email from a former coworker, discussing how the employee always cheated on his time cards when they worked together), the safest thing to do is to send the employee what we call a Ward letter, describe the new information that was considered, and give the employee a chance to respond to that new information.

If the case ends up on appeal before the MSPB, the Administrative Judge will certainly be more interested in what the DO has to say, than what the PO has to say. This does not mean the DO has to do a separate Douglas Factors analysis, though; it just means that the DO should be intimately familiar with the PO’s Douglas analysis and be prepared to answer any questions about the content therein, since she is signing off on the analysis and agreeing with it.

I hope you agree that in the Great Debate of 2020 (and 2019, 2018, 2017, 2016….all the way back to 1981), the clear winner is Douglas in the proposal notice. We’ve even helped agencies rewrite their discipline policies to reflect this legal requirement. Let us know if you want help with yours; we’d be happy to assist. [email protected]