Cut us, we bleed efficiency. OK, maybe too graphic. Come to our FELTG training and we will teach you how to quickly and effectively hold your employees accountable for performance and conduct while simultaneously providing all the rights the employee has under law.
Recently, we had a Human Resources participant in our fantastic MSPB Law Week seminar tell us that at her agency, during the proposed-adverse-action notice period (e.g., 30 days), the general counsel’s office routinely granted employee requests to extend the response period by 30 days, for a total of 60 days. When our participant questioned the reason for the delay, she says the response she got is that GC wants to be sure the employee gets due process.
Well, that’s a bad reason. I did some case law digging and could not find a single case in which an agency’s refusal to extend a statutory notice period was found to be a violation of due process. Ever. The law says that 30 days is adequate time to respond with a representative. Congress has even identified a couple of situations in which a reduced seven-day notice period satisfies the Constitutional right to due process (e.g., the crime provision and the new quickie SES removals over at DVA). Since we know that 30 days has been defined as adequate, and that there’s no case law contra, why would anyone extend the notice period?
Perhaps it’s fear. In my experience if an employee’s attorney asks for an extension of time, and that request is denied, the employee’s attorney will let loose with a barrage of loud objections: Due process! Right to a representative of his choosing! I’m such a good attorney that I don’t have time to play around! I’ve even seen appellant’s counsel argue that Board decisions finding a denial of a time extension by a judge is somehow related to a denial of an extension by a deciding official. Yes, if you deny the request for an extension, you should be prepared for noisy complaints from the employee’s lawyer (the same noises I would make if I were working that side of the bar). And if you don’t like to be yelled at or otherwise objected-to by opposing counsel, then you may well decide to grant the extension.
Of course, if it was your money that was paying the extra salary required of by an extension, you might balance things differently. What does an extra 30 days cost the government; maybe $10,000 if you figure in the total compensation? That’s not a lot of government money in perspective. However, if it was coming out of your personal checking account, maybe you’d think twice about granting an extension request. It’s easier to say “yes” than it is to say “no,” but that “yes” comes with a significant price tag when it’s your personal money.
Perhaps it’s not fear-of-counsel. Perhaps the extension-grantor is just trying to be nice to the employee, to allow him plenty of time to defend himself. Well, why? Who’s the client for agency counsel? Obviously, it’s the agency. And when you have a proposed removal out there, you have an agency official (the proposing official) who with the assistance of an employment law practitioner is taking the position that the employee should be fired. Therefore, your client has tentatively reached the conclusion that removal is warranted. As an attorney, your role is not neutral. Your role is to represent the interests of your client. That doesn’t mean that you treat the employee unfairly, but it does mean that any decisions you make should be in the best interests of your client. It’s hard to imagine a situation in which allowing more than 30 days to present a defense to a proposed removal is in the best interest of the government. If an employee’s attorney when confronted with a detailed proposal letter plus supporting evidence cannot develop a defense within a few days, perhaps that attorney needs an assistant, or another line of work.
In my practice representing agencies, if opposing counsel requests an extension of time to respond to a removal, I do not grant that request routinely. In fact, I routinely deny the request. However, as this is a line decision in my option, if the client-supervisor concludes that the employee’s attorney has made a good case for needing more time (e.g., lightning strike, unexpected death in the immediate family, taken to the Mother Ship for unscheduled probing), I’m willing to grant the extension IF the employee will request LWOP to cover the extension period. If the employee’s attorney’s situation is dire enough to require additional time to prepare a response, let the employee pay for the additional salary expense. That way, it’s not a matter of whether opposing counsel has a good excuse for needing more time. Rather, it’s a matter of who pays for it. And if I’m agency counsel with a fiduciary obligation to my agency, it’s not going to be the agency that pays. Wiley@FELTG.com