Exactly What is “Priority Consideration”?

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By William Wiley

It’s a new year. We get new questions. Here’s one from a concerned reader that involves a staffing office that may be unfamiliar with a long-standing legal concept:

I recently conducted a labor arbitration case that resulted from a grievance.  The remedy that was negotiated for settlement included a “priority consideration” for the individual, noting that the individual had to be qualified and a vacant position open.  The “priority consideration” stated that “the appellant would be considered first by the selecting official before any of the other candidates, who applied competitively for that vacancy announcement, will be considered.  The Appellant will then be offered the position unless he is no otherwise qualified for the position at that time.”  I have been told by our Civilian Personnel Office that, while they recognize “priority consideration” they do not recognize the authority of the arbitrator to approve the use of priority consideration in the way I have structured it in the facts of this case. They believe that this “priority consideration” violates the merit system principles.   The CBA for the particular union in the grievance uses the “priority consideration” but only in those cases where the government, during a competitive promotion process, has errored against an individual.  The typical case is where the individual has not been referred and should have been.  In that case and only that case, the Civilian Personnel Office recognizes priority consideration and gives the wronged individual a referral in the next vacancy for which he/she is qualified but does not guarantee the job.  I have performed some research under FLRA case law and have not found any cases on point but have found cases where priority consideration was a remedy.  Would greatly value your opinion on this matter. Thank you.

And our occasionally-elucidating response:

Always nice to hear from you. The answer is not in FLRA law, but in MSPB law. “Priority consideration” is a term of art that “generally means that an employee will receive bona fide consideration by the selecting official before any other candidate is referred for consideration, that he will not be considered in competition with other candidates, and that he will not be compared with them,” Lou v. Heckler, 38 FEP Cases 835, 837 n.3 (D.C. Cir. 1985).

Even when there is some question as to how a settlement is to be implemented, the obligation of the agency is to implement it in line with legal authority. Agencies have been offering priority consideration for over 30 years, so we know you have the authority to do it. The only limitation would be that you have to offer it consistent with any legal constraints; e.g., perhaps there is a disabled employee who has the legally superior claim to the vacancy, and has to be offered it as a reasonable accommodation.

Your civilian personnel office is mistaken in where the authority comes from to award priority consideration. It is not the arbitrator who is exercising the authority, but the agency itself through the operation of the settlement it agreed to. We provide training to personnel specialists (OPM does not provide mandatory training, sadly). We’d be delighted to have some of them in our upcoming classes; perhaps save you and Rod further difficulties.

As a footnote, be sure to have your selecting official document his bona fide reasons for not selecting the grievant, if that is the result. You’re going to have to defend that the appropriate consideration was provided if there’s a non-selection.

Hope this helps. Best of luck-  [email protected]

Perhaps MSPB Needs New Glasses

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By William Wiley

Why new glasses? Because the Board seems to have lost its focus. Let me tell you what I mean.

Way back in 1977, when yours-truly was but a babe in the world of “civil service personnel,” Congress was thinking up legislation that was destined to become The Civil Service Reform Act of 1978. In those primordial discussions, Congress began to develop the concept of a new federal agency, independent and given the responsibility to oversee all the major discipline in government (more or less). I remember clearly a couple of Senators referring to this still-conceptual embryonic oversight entity as the “Merit Board.” Nice tight name, I thought. “MB” works well as the acronym (certainly better than the unfortunately-named “Sam Houston Institute of Technology”). So we called it the Merit Board, at least for a few weeks.

Then, without a lot of fanfare, when the draft legislation began to take shape, the name appeared not as the Merit Board, but as the “Merit Systems Protection Board.” A couple of years later when former Civil Service Commissioner Scotty Campbell spoke at one of our earliest conferences, he related that the change was made to emphasize that this new agency had been created to protect the system itself, not to ensure some sort of individualized “merit” throughout government. The concept was that no single small agency could be responsible for every adverse personnel action within the two-million-plus government workforce. Rather, the most that could be hoped for was that the new MSPB would make sure that the merit-based systems were in place for use by the managers who run the various government agencies, and that the systems would provide the protection to the employees within those systems.

That’s why its named the “Merit Systems Protection Board,” not the “Federal Employee Protection Board.” If it were intended to be the FEPB, rather than the MSPB, it would be responsible for protecting the right of individual employees to be treated based on its definition of merit. In comparison, as the MSPB, it is designed to be responsible for protecting the system in which agency managers deal with agency employees, to make sure that those SYSTEMS are grounded in merit.

I know, I know. Sounds a lot like an angels-on-the-head-of-a-pin rumination, doesn’t it. Well, let me show you the distinction in practice.

Hypothetical Scenario: Agency fires employee because of theft.

MSPB World:  MSPB decides whether Agency provided Employee the procedures required by the merit system. Did Agency give Employee clear notice of why his removal was proposed? Check. Did Agency allow Employee to defend himself? Check. Did Agency provide Employee the reasons for the removal, all based on the proposal? Check and done. The focus has been on the application of the system by Agency.

FEPB World:  FEPB decides whether it can protect the employee who is in a merit system from being fired. Did Employee steal from Agency? Did Employee get due process? Did Agency pick the best penalty? The focus has been on the protection of Employee from removal.

Non-hypothetical Scenario:  A supervisory employee responsible for keeping terrorists out of our airplanes lies in a report. Twice. The judge even found part of her defense of herself to be an unbelievable “convoluted” rationale. Who would want a convoluted liar to be responsible for life-and-death decisions? Agency fires her.

MSPB World:  She got notice, she defended herself, the agency made a decision based on all the facts. Done.

FEPB World:  Ah, ha! I, the FEPB, conclude Agency did not prove all charges. I, the FEPB, conclude that she’s really not that bad of an employee because she lied in only a single report, has decent performance ratings, there’s tension in the workplace, and she had no prior discipline. I, the FEPB, conclude that removal is beyond reasonable and that “her misconduct would not preclude her from providing efficient service in a non-supervisory” lower-graded position, plus a 30-day suspension should replace the removal. Brown v. DHS, SF-0752-14-0816-I-1 (2016) (NP).

Note that in the FEPB World, not only did that Board declare that removal was unreasonable, it also concluded that the agency needed someone in a lower-graded position, and even though it might need someone in a lower-graded position, it could spare that individual for a month while suspended. Sure feels a lot more like managing an agency than simply protecting a merit system, doesn’t it?

The scenario in which this loss of focus has become most publicized imvolves the recent reversals of adverse actions taken by DVA against three of its Senior Executives. Instead of MSPB ensuring that the systems that were in place were complied with, it interjected itself into those systems and made decisions that were always intended to be made by the line managers who run DVA. For example, as we noted recently last month, in one of those reversals the Board’s judge said, “Deputy Secretary Gibson … stated [a co-worker’s conduct] that would go to lacking sound judgment is different. I do not see it as different,” and “Deputy Secretary Gibson testified that he had no intent to discipline [appellant’s co-worker] because [the co-worker] did not receive [$274,019.12 in] relocation benefits. I do not find that these are meaningful distinctions. First, although the she did not relocate, [the co-worker] had a sizable pay raise to lose [of $18,000 per annum].” Graves v. DVA, CH-0707-16-0180-J-1 (January 29, 2016). This is a perfect example of the Board’s case law steering its judge toward the defense of the employee rather than the defense of the system, substituting its judgment for that of the line manager responsible for the operation of the agency.

Think of it this way. You’re ready to buy a new car. I go car shopping with you. We get to the point of considering two cars: a Ford and a Chevrolet. You conclude that the Chevrolet is the better car. I conclude that the Ford is the better car. Given that you are the one buying the car, responsible for driving it, and accountable should anything go wrong with it, who should make the buying decision: you or me? That’s right, you should, and so should it be the agency making judgment-call decisions like this within a merit-based system.

MSPB Chairman Grundmann was called upon earlier this month by several members of the US Senate to explain how the Board could possibly have not affirmed the demotions/removal in these DVA cases. In response, the Board stated that it was just following the law. Well, that’s just nonsense.  The Terrible Trilogy precedent (recent case law that calls for setting aside a penalty if anyone else in the agency who did anything remotely similar was not removed) exists solely as case law developed by the Board under Chairman Grundmann in 2010, and is not required by statute or regulation.  However wrong in its own right, the Board’s disparate penalty analysis was obviously designed for use in cases governed by Douglas, i.e., cases in which penalties can be mitigated.  That is the whole point of the Terrible Trilogy precedent — to justify mitigating a removal penalty to something less even though removal otherwise would be justified.  The Board was in no way required to apply this precedent to cases in which penalty mitigation was prohibited by law, as It is in the DVA/SES adverse actions.

MSPB should not be faulted for following the law, as it said in its response to the Senate inquiry. However, it certainly should be faulted for developing that law in the first place, for turning away from being the protector of our merit systems to being the protector of employees from what it believes IN ITS JUDGMENT to be unwarranted discipline.

By the way, since you’ve decided on the Chevrolet, may I suggest you consider the 2016 Corvette. That baby is wicked-cool and handles as if it was on rails. Of course, it’s your decision, not mine. [email protected]

Must One Be an Employee to Blow One’s Whistle?

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By William Wiley

Pop Quiz:  If an individual who is not a federal employee discloses an agency’s gross mismanagement and then is denied federal employment in reprisal by an agency for making that disclosure, is that individual entitled to pursue a whistleblower reprisal claim through OSC and the Board?

Hmmm.

And the answer is: Nobody knows.

That’s why on January 19, the Board issued a Federal Register notice calling for amicus briefs to address the issue, 81 Federal Register 11 (January 19, 2016), pp. 2913-2914. Seems as though there’s a case pending at MSPB that raises a similar hypothetical and the Board would like to know what you wonderful practitioners think about the issue, Mark Abernathy v. Army, MSPB Docket No. DC–1221–14–0364–W–1.

Now, I know many of you readers have a lot of spare time on your hands and are looking for something extra to do. And you’d like to show off your employment law chops just in case our next President’s transition team is looking for a new Board member (actually, two) over at MSPB about this time next year. What better way to have a sample of your work to send to them than an elucidating legal brief, discussing the pros and cons of both interpretations of the Whistleblower protection legislation (especially in light of the Department of Defense Authorization Act of 1987 – zzz), while reaching the conclusion that everyone on Earth, natural-born citizens and genetically-modified organisms alike, as well as citizens as yet unborn, and perhaps even visitors from other planets (with a proper visa, of course) is a protected whistleblower.

On one hand, it’s nice to see the Board members asking for an opinion from us practitioners. Goodness knows, they should have done that before they went down the dark road of Miller-reassignments and world-wide comparator employee analysis. On the other hand, although this is no doubt an important question for Mr. Abernathy (and perhaps your loyal reporter, were he seeking future federal employment), does it really concern enough potential appellants to be worth the effort of a call for amici?

As Pope Francis once said, “Who am I to judge?” The Members want to know your opinions, and now’s your chance to tell them. The deadline is February 9 so don’t dilly-dally. Be sure to review the Federal Register notice carefully so that you can fully understand this issue. Write well, write strongly, and perhaps affect the future course of federal employment law.

And, simultaneously create a nice writing sample for the President-elect to consider on her way to being inaugurated.

Numbers, We Love Numbers

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By William Wiley

Recently at FELTG, we stumbled across a copy of some MSPB case numbers that we found to be interesting (some call it dumpster-diving; others call it hard journalistic research). From what we could figure out, MSPB HQ has finally turned the corner on processing the multitudinous appeals from the Stupid Sequestration we all endured a couple of years ago. The Office of Appeals Counsel (if you have been to our famous MSPB Law Week seminar, you know who and how important that office is) has reduced its case backlog to just over 150 cases. That’s a remarkable achievement, given the workload increase that office has endured because of the Board’s decision to begin issuing non-precedential decisions several years ago.  150 pending cases is about the level of backload in OAC when I was MSPB’s Chief Counsel in the ’90s, a period of relatively expedient and consistent case processing (if I do say so myself).

The situation with the judges in the regional offices, however, is much darker. For nearly its entire existence, each Board Chairman has imposed a goal of issuing decisions in all initial appeals (the judge’s decision) within 120 days. And more than one MSPB administrative judge has been quietly moved into other employment over the years when he could not keep up with the pace of 120-day adjudication. In a perfect world, the regions would have a backlog of zero cases more than 120 days old. Practically speaking, a few cases will be so complex as to require more time, so you might expect a backlog of maybe 10-12 over-age cases.

As of the end the previous year, according to the reports we recently received, the Board’s regional offices had a 120-day-old backload of over 900 cases.

When you consider that number, think of each of the individual appellants who have a significant part of their lives on hold, awaiting a regional decision in their case. Think of the growing liability exposure each agency involved in the appeal has, if the case involves potential backpay. In my day, in a situation like this, we would have moved troops from HQ to the field to help with the backlog, as soon as we were able to work out details with the Board’s professional association and office directors. I wonder if the current leadership of the Board is taking action to help in the regions.

Proposing a Demotion

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By William Wiley

Questions, we get questions. Not many questions about demotions, however, because agencies rarely use them. But recently we got an interesting query as to exactly what to include in the proposal letter of a demotion:

Today, someone who should know MSPB case law told me that when an agency proposes a demotion, it is required for the proposal letter to state the position and grade to which the agency is proposing the employee will be demoted. This someone added that if this requirement is not met, MSPB will conclude that a due process violation has occurred. I asked this someone to point me to case law, but s/he could only identify the due process cases with which we are all familiar. Am I missing something? How does an employee’s ignorance of the specific job and grade to which he may be demoted impact his due process rights?

And our FELTG response:

Very nice to hear from you. As for your question, amazingly this issue has not come up squarely before the Board, at least not in any final opinions and orders. I think that’s because demotions are rare and because agencies more-or-less routinely say in the proposal letter the step and grade of the demotion. Doing so helps to set the expand bracket for negotiating a lesser demotion with the employee after he responds to the proposal.

From a due process standpoint, I can see a potential problem if I really strain my brain. For example, if we were to propose a “suspension” without stating the length, that might give the employee/appellant the argument that if he had known of the length of the suspension, he would have exercised his response rights differently. If you think about it, an employee might not put a lot of effort into defending against a one-day suspension, but might hire a lawyer for his response if the suspension was going to be 90 days. I can see an analogy to a demotion in that if we don’t tell the employee how much salary he has the potential to lose, he doesn’t know how to exercise his due process right to respond. He might not respond at all if the demotion were one-grade, but might hire a big law firm if it was going to be from a GS-12 to a GS-5.

On the practical side, I don’t know why we would NOT tell the employee to what level the demotion would be. Doing so gives us one less thing to worry about as a possible reversal point (and we know that arbitrators and recently the Board are looking very hard at due process). The employee has a right to respond to the penalty analysis in Douglas. Without knowing the severity of the penalty (the degree of the demotion), it arguably would be difficult for him to respond to the penalty assessment (because he doesn’t know the degree of the penalty).

In my practice, I never propose a demotion. If the employee has done something that warrants a demotion, it also warrants a removal. Therefore, I propose a removal, allow the employee to respond, then offer a voluntarily demotion as an alternative. If the employee accepts, I’ve avoided the appeal/complaint/grievance process. If he does not, the Deciding Official can still implement a demotion instead of the proposed removal as it is a lesser penalty.

Hope this helps. Let me know if you need anything else. [email protected]

Reasonable Accommodation: Alternative Effective Accommodations versus Undue Hardship

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By Deryn Sumner

Last week I joined Ernie Hadley and Gary Gilbert for FELTG’s twice-annual open enrollment session, EEOC Law Week in Washington, D.C. On Wednesday, we walked through disability discrimination law, the various theories that can be applied to these claims, and the obligations employers have to accommodate employees with disabilities.

As Ernie and Gary like to say, there are no points awarded for creativity in analyzing disability discrimination claims. First, the employer must determine if the employee is an individual with a disability by establishing he or she has a medical condition which substantially limits a major life activity.  Since the passage of the ADA Amendments Act more than six years ago, this is not an onerous standard for employees to meet.  Next, the employer must determine if the employee is qualified to perform the essential functions of the position with or without an accommodation.  If the employee meets these criteria, remember that an employer must provide an accommodation unless providing the accommodation would pose an undue hardship to the employer.

Based on some of the questions we received during the sessions and the breaks at EEOC Law Week, I wanted to talk a bit more about this requirement that the employer provide an accommodation.  Sometimes in response to a request from an employee for accommodation, the initial reaction is to conclude that the accommodation requested is not reasonable.  That then leads to the decision to argue that it would be an undue hardship to provide the requested accommodation.  And that is going to land the agency in hot water for failing to accommodate the employee.  Instead of focusing on arguing whether the accommodation requested by the employee might pose an undue hardship, agencies should instead focus on how an effective accommodation can be provided.

Recall, at this point, the agency has already determined that the employee is qualified to perform the position with or without accommodation.  So, the employee can perform the job and the question turns to what accommodations the agency can provide.  The law is clear that the employee does not need to be provided with the accommodation of his or her choice, but merely an effective accommodation.  So instead of preparing to argue as to how the requested accommodation poses an undue hardship, the agency should engage in the interactive process and figure out what the agency can reasonably do to allow the employee to perform the essential functions of the job.  Don’t focus on how the employee’s requested accommodation is unreasonable; look to what effective accommodations can be provided.  This is the part of the process where creativity is encouraged.  Different accommodations work for different people with different medical conditions working in different positions.

And a final reminder: undue hardship is a defense to a claim of disability discrimination and should not be asserted without being very confident that it really would be an undue hardship to accommodate the employee.  The Commission’s regulations at 29 CFR 1630.2 state the factors that should be considered in such an analysis:

  1. The nature and net cost of the accommodation needed under this part, taking into consideration the availability of tax credits and deductions, and/or outside funding;
  2. The overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation, the number of persons employed at such facility, and the effect on expenses and resources;
  3. The overall financial resources of the covered entity, the overall size of the business of the covered entity with respect to the number of its employees, and the number, type and location of its facilities;
  4. The type of operation or operations of the covered entity, including the composition, structure and functions of the workforce of such entity, and the geographic separateness and administrative or fiscal relationship of the facility or facilities in question to the covered entity; and
  5. The impact of the accommodation upon the operation of the facility, including the impact on the ability of other employees to perform their duties and the impact on the facility’s ability to conduct business.

Proceed down this path at your own risk.  Instead, if the accommodation requested by the employee is not feasible, the agency should focus on what alternative effective accommodations can be offered to allow this employee to perform his or her job. [email protected]

Using a PIP in a 752 Performance Removal

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By William Wiley

Another reader question. And this one is from an attorney at one of those few agencies that is not covered by the unacceptable performance removal provisions of 5 USC Chapter 43. Does a Performance Improvement Plan have any place in that non-432 world?

The issue:

Dear FELTG Super-Brains,

Because we are a government corporation, our agency cannot use Chapter 43 to remove employees for poor performance and rather, must use Chapter 75. Nevertheless, we still place poorly-performing employees on performance improvement plans.

I know that under Chapter 43, if an employee passes a PIP but later fails to maintain their performance in same performance measures from the PIP during the year following the PIP, they can be removed without being put on another PIP. My question is, is there any similar advantage offered to agencies for removals under Chapter 75? Or does the test remain the same no matter what?

And our insightful (or not) FELTG answer:

Very nice to hear from you. As for your question, we don’t have any MSPB cases on point, but the same old Chapter 75 logic applies:

  • First, you have to tell the employee what you expect (i.e., have a rule and tell him the rule). A PIP Initiation letter will do that for you. If at the end of the PIP the employee has failed to meet the expectations you set (MSPB likes to call those expectations “firm benchmarks”), you have a violation of the rule and a basis for a 752 removal.
  • If the employee successfully completes the PIP by getting her performance up to an acceptable level, give the employee a PIP Warning Letter, There’s a sample on p. 230 of the world-famous textbook, UnCivil Servant, deweypub.com.
  • If the employee fails during the PIP or post-PIP and you propose a removal, you’ll have to do a Douglas Analysis to justify the termination. The fact that you’ve previously PIPed him for the element he has failed will go to the factors: isolated or repeated, work record performance, and clarity of notice; perhaps rehabilitation potential. Unfortunately, a PIP failure works against removal when evaluating the Douglas Factor related to “intentional.” One of the beauties of a classic Chapter 43 removal is that intent is irrelevant; not so in a 752 performance removal.

Unfortunately, under Chapter 75, you’ll run into judges who want to evaluate your standard of performance to determine whether in their mind, you have set a level of performance that deserves a removal for failure. In a classic Chapter 43 case, on the other hand, a judge cannot evaluate the wisdom of the critical element. Winlock v. DHS, 2009 MSPB 23, is a good Chapter 75 case to look at regarding this little hurdle, although there DHS did not use a PIP.

Another unfortunately: we’ve seen a new collection of Board members since Whitlock. This Board even in a Chapter 43 performance has stuck its nose into the strength of the agency’s determination as to whether a standard was too tough. In Muff v. Commerce, 2012 MSPB 5, the Board came up with some stupid “genuinely unacceptable performance” approach, although there I think they were put off more by the length of the post-PIP period for determining subsequent unacceptable performance, and not the standard itself. The good news is that only one of the Board members who voted in Muff is still serving, so maybe we can avoid any further inroads into management’s right to set a performance standard.

Too bad you can’t use Chapter 43. It is a dynamite tool for holding people accountable. Tomorrow, I’m drafting a proposed removal for a client who initiated a PIP at the end of February. 30 days and out is a pretty decent way to get people to do their jobs.

Hope this helps. Best of luck. [email protected].

If the Agency Settles, Does that Mean the Employee Wins?

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By Deborah Hopkins

Settlement makes up a major part of federal employment law practice. In fact, most disputes in our field settle – whether they initiate as grievances, EEO complaints or as appeals of agency disciplinary action – before they ever get to hearing.

Settlement happens. A lot. Yet somehow, this is a topic that doesn’t get a lot of love in the training world. Many of us think we know how to settle, but few of us are actually ever trained in the skills required to negotiate settlement agreements. Settlement Skills is certainly not a mandatory class in law school, and no agency or union that we know of requires its reps to complete training in settlement negotiations or ADR.

There are several considerations to make when determining whether your case is one that’s prime for a settlement offer.

First, both sides have to be willing to settle. If you approach the employee (or, for employee reps, if you approach the agency) and they are not willing to discuss settlement, you’re probably done right there. You can always ask again, and as most of you know, the AJs at MSPB and EEOC are going to ask about the possibility of settlement at just about every phase of the process, but if one side says no, you can’t force settlement on them.

Second, you should consider the conditions that will be included in the settlement agreement. Will there be an admission of fault or liability? Is an apology required? Will there be a reference clause or a confidentiality clause? No two settlements are exactly alike, and some fairly creative arrangements might be upheld. One of my favorite settlement stories occurred in David Hasselhoff’s 2008 divorce settlement: he got to keep total possession of the nickname “Hoff” and the catchphrase “Don’t Hassle the Hoff.”

Third, there must be valid consideration. For those of you who didn’t go to law school (or for those of you who remain scarred from Contracts), consideration is a bargained-for exchange and in the context of settlement it means that each party has to do something to its detriment as part of the agreement – something that it isn’t already obligated to do. Valid consideration might be something like the reassignment of a supervisor, or allowing an employee to swap work shifts. An agency offering to treat a complainant with “dignity and respect,” and “not to retaliate,” however, is not valid consideration; the EEOC said the agency was already supposed to be doing that for all employees. Dubois v. Social Security Administration, EEOC Request No. 05950808 (1997).

Fourth (and last for today), the agreement must be enforceable. The agreement must be signed by someone with the authority to make the decisions held therein, and the agency and employee must have the ability to comply with the terms. Included in the enforceability requirement is a “meeting of the minds” where all parties involved know what they’re agreeing to. Without that, the settlement agreement is not valid.

Just last week I was talking with an agency representative who is a former prosecutor, and she said, “Settlement just doesn’t feel right. It’s like saying the employee did nothing wrong and the agency is at fault.” That’s a common misconception, but it’s not actually grounded in truth; settlement has no direct tie to liability or admissions of wrongdoing. Even if it goes against your gut to consider settlement, keep in mind it’s not just about “guilt and innocence.” Plus, even when an agency wins an appeal, it’s going to cost the agency. A successful defense averages about $100,000 at MSPB. We’re not sure how much is costs for an agency to win at EEOC, but a number of those complaints are unresolved for years, so we know it’s not cheap.

As a result of interest in this topic, we at FELTG are creating a brand new open enrollment program on Settlement, Mediation, ADR and other ways to resolve disputes without litigation. The program will be held in Washington, DC October 31 – November 4, and we’ll have details for you, including an official program name, very soon. [email protected]

Career Lessons Learned from My Father

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By Deryn Sumner

Note: When I first started contributing to this newsletter, Bill told me I had liberty to write about pretty much whatever I wanted.  I’m going to take him up on that this month and depart a bit from my usual arena of EEO law to talk about my father’s career and the lessons I’ve learned from him. [Editor’s Note: I am so smart.]

On April 18, 2016, my father, Dave Sumner, retires from his position as the Chief Executive Officer of the American Radio Relay League (ARRL).  Those of you who know what ham radio is likely know about ARRL.  Those of you who are ham radio operators may even know of my dad, even if you know him only by his call sign, K1ZZ.  In his role leading this non-profit, he traveled all over the United States and the world attending conferences, meetings, and conventions spreading the mission of ARRL: to advance the art, science, and enjoyment of Amateur Radio.

My dad has been a ham radio operator since the age of 13. He held his first job at ARRL during the summer of 1968 and joined the staff full-time in 1972.  Some people work to live and some people live to work.  My father was fortunate enough to make a career of his passion for ham radio.  That’s not to say that he enjoyed every aspect of the job.  However, last week my husband and I flew up to Connecticut to attend my father’s retirement party.  I had the pleasure of hearing some very touching tributes to my dad’s work over the many decades he has been with ARRL.  Some common themes emerged during these speeches that caused me to reflect on what makes a good supervisor that will cause people to travel (some from other countries) on a rainy Thursday evening to wish you well at the end of your career.  I thought these themes I came away with would be helpful for some of the supervisors in the FELTG audience.

Don’t take credit for the work of others, and go out of your way to make sure those who do good work get proper credit for it.  Be a mentor to other employees.  Hearing so many people say what a mentor my dad had been to them in their careers was a delight.  If someone comes to you with a problem, don’t make that person feel silly or demeaned for asking you for help.  Assist with working to come up with a solution and make sure they have the tools to get there.  Keep calm, even when things get contentious.  Know your stuff or know where to look it up.  Everyone may not have the encyclopedic memory of my dad (I know I don’t) but you should speak with authority and credibility.

At its core, employment discrimination law is about the relationships between people.  It is one of the best (and of course, one of the worst) aspects of the job representing employers and employees in EEO complaints.  Employees feel disrespected, even harassed, by how their supervisor treats them.  A supervisor tries to hold accountable an employee who feels defensive, or that the criticism is unwarranted, or that they haven’t been given the proper tools to succeed.  Sometimes these interactions are motivated by unlawful animus because of someone’s membership in a protected class.  And sometimes it’s because two people have a poor working relationship or there is disrespect on either side.  Being in a room with a group of people who respected my dad and will miss working with him was certainly a highlight for me.  Supervising people is hard work, but remembering that they are people and part of your job as a supervisor is to nurture their careers, can go a long way to fostering healthy working relationships. [email protected]

More Use and Misuse – Vehicles

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By Barbara Haga

I am sure that most readers are generally familiar with the statutory penalties associated with misuse of government vehicles.  I thought that a look at some cases that involve that charge and related forms of misuse might be a good topic to explore.  There are lessons here about careful crafting of charges.

The Basics

The statutory penalty appears in 31 USC 1349.  Enacted in 1982, the relevant sections include the following:

  •  1349. Adverse personnel actions

(b) An officer or employee who willfully uses or authorizes the use of a passenger motor vehicle or aircraft owned or leased by the United States Government (except for an official purpose authorized by section 1344 of this title ) or otherwise violates section 1344 shall be suspended without pay by the head of the agency. The officer or employee shall be suspended for at least one month, and when circumstances warrant, for a longer period or summarily removed from office.

(§ 1344 discusses when passenger vehicles may be used for transportation for a government employee from the residence to the place of employment and other related usage such as travel to a transportation terminal).

We will look at two Federal Circuit cases which outline what is required to establish willful use and reckless disregard, or actually in these two cases what didn’t establish those things.  These cases look at two different scenarios – one when an employee was authorized by a supervisor to use the vehicle and then the supervisor was disciplined and one when the employee used the vehicle assigned to him for a purpose judged to be unofficial.

Supervisor Authorizing Employee to use Vehicle

The case is Felton v. Equal Employment Opportunity Commission, 820 F.2d 391 (Fed. Cir. 1987). Felton was the acting Area Office Director of an EEOC Regional Office.  A clerical staff member’s car broke down on the expressway on the way to work.  She got a ride to work and subsequently asked Felton to use the office’s government vehicle to return to the car to secure it before it was towed for service.  Felton approved use of the vehicle and was suspended for 30 days thereafter.  She testified in her appeal that she authorized the use of the vehicle because the employee was the only typist, there was a large backlog at the time, and that use of the vehicle allowed resolution of the problem with the vehicle in the most expeditious means possible.  The AJ found that the Felton knowingly, consciously, and willfully authorized the use of the vehicle for other than an official purpose and sustained the suspension.  The full Board denied the petition for review and Felton challenged the action at the Federal Circuit.

The Court reversed the suspension, finding that there was no evidence to support a finding that Felton knew or should have known that the use of the vehicle in the circumstance of this case would be held to constitute use for a nonofficial purpose or that she acted in reckless disregard of whether the use was or was not for an official purpose.  The analysis included examination of both points.

The decision explains how “willful” should be reviewed.  The Court wrote:

Had the word “willful” been omitted from the statute, the statute would apply to any authorization for any nonofficial purpose. It would have made all unwitting, inadvertent and unintended authorizations for nonofficial use a violation of the statute. See Morissette v. United States, 342 U.S. 246, 270 (1952). Such is not the case here. That Felton’s authorization was a conscious and intentional act was admitted, but a knowing authorization of an unofficial use requires more than mere intent to do the act which lays the foundation for the charge. The requirement of knowledge applies to the unofficial nature of the use as well to the authorization. She knew and intended to authorize the use, but there is no evidence that she actually knew that the use would be characterized as “nonofficial.”

The Court also found that Felton’s authorization was not in reckless disregard of whether the use was for other than official purposes.  In this they reviewed the content of the EEOC order on use of motor vehicles.  The policy stated: “What constitutes official purposes is a matter of administrative discretion to be exercised within applicable laws. The general rule may be stated that where transportation is essential to the successful operation of an authorized agency purpose, such transportation will be considered as official use.”  The Court found it reasonable that Felton could conclude that that the use authorized in this case would promote the successful operation of the agency.

What the Court did find was that Felton made a poor management choice.  The AJ outlined other options Felton had, such as denying use of the vehicle and leave for the purpose of going back to the vehicle.  The AJ relied on these management alternatives to support a finding that the decision was made in reckless disregard of whether the use was official.  The Court’s decision takes the opposite approach.  The Court found that Felton’s testimony made it clear that she acted in good faith in attempting to solve an office emergency.  The decision states, “Poor management judgment in selecting an alternative to solve an office emergency does not rise to the level of ‘reckless disregard.’”  [Editor’s Note: And why any agency would ever charge willful misuse of a government vehicle under this statute is beyond my understanding. Charge “Misuse of Government Property” and save yourself all this heartburn.]