By William Wiley, June 27, 2017

If you are a repeat-reader of the FELTG newsletter, you know that we believe that agency managers should run the government. Not human resources specialists, not agency counsel, and certainly not some MSPB lawyers ensconced in a governmental ivory tower in Washington, DC (OK, it’s just a red brick six-story building, but you get the point). If we’re going to expect government managers to be held accountable for the government’s work, we should be letting them decide when removal of an employee is warranted, except in the most outlandish cases of over-reaction. In different words, that’s for the most part what the Board’s seminal penalty decision said. See Douglas v. VA, 5 MSPR 280 (1981).

When we see a case in which we think that the Board has over-reached to mitigate a removal, we are fast and furious to beat them up as best we can in a free newsletter. For example, we think that it was crazy for MSPB to require the Postal Service to reinstate a fired employee who had spent her lunch break smoking crack cocaine and marijuana and getting arrested instead of returning to work. And to this day, we do not understand how progressive discipline for an employee who has previously received 7-day and 14-day suspensions should result in a removal mitigated to a 5-day suspension for a third offense (if you need cites for these, come to our seminars). We’re relatively certain that our outspokenness about penalty mitigation has gotten us taken off MSPB’s Christmas party attendee list.

Well, now we’re probably going to be dropped from the mailing list for the Federal Circuit’s Holiday Ball. It seems that those who wear the black robes just off Lafayette Square in DC feel that they are in the better position to decide who deserves to be fired than those line managers held responsible for agency performance. The employee in a recent case before the court was an agency Chief of Police – a supervisory law enforcement officer (LEO). He directed one of his subordinates to misuse a government vehicle by running a personal errand for him. Although he initially lied about the misconduct, he eventually admitted it. The agency and the Board concluded that removal was warranted. However, the Federal Circuit Court of Appeals decided that removal was unreasonable and remanded for the Board to decide a lesser penalty. Tartaglia v. DVA, Fed. Cir. 2016-2226 (June 8, 2017).

In all fairness, DVA and the Board screwed up. They thought that the employee had only four years of service with DVA when he actually had 14 years of service, preceded by 5 years of military service. OK, that’s a mistake, perhaps even a significant mistake, relative to half of Douglas Factor No. 4: Work Record. However, there are 11 ½ other Douglas Factors in play, some of them seriously aggravating:

  1. Supervisors and management officials can be disciplined more seriously than non-supervisors. Cantu v. Treasury, 88 MSPR 253 (2001), Edwards v. USPS, 116 MSPR 173 (2010).
  2. Law enforcement officers can be disciplined more seriously than non-LEOs. Hanker v. Treasury, 73 MSPR 159 (1997).
  3. LEOs who engage in dishonest conduct that results in discipline may become Giglio impaired, thereby reducing or eliminating their ability to testify as witnesses in criminal trials. See Taylor v. Air Force, MSPB No. DC-0752-12-0296-I-1 (NP)(2013).

Does a 15-year mistake in consideration of the individual’s employment history mean he should not be fired for directing his subordinate to engage in illegal behavior? Well, here at FELTG, we do not claim to know. But with all due respect, neither do the three judges who heard this appeal in the Federal Circuit. We do know that a plain old run-of-the-mill non-supervisory federal employee is supposed to get a minimum 30-day suspension for the statutory misuse of a government vehicle. If that is the base line, what do we go up to for a Police Chief who lied about his misconduct initially, and engaged a subordinate employee in an illegal act? Given that long suspensions are harmful to the agency as often as they are to an employee, and given that a long suspension is no more likely to curtail future misconduct than a shorter one, what in the world is the court thinking is appropriate in this situation? The court’s remand expressly provides that removal is an excessive penalty. What does the court think is left?

For whatever it’s worth, we’ve argued for several FELTG years that when the Board or court finds a penalty to be excessive, rather than trying to apply Douglas factors after some of the specifications have failed, the case should be remanded to the agency for redetermination of the penalty given the facts remaining in the case. As some of the charges and specifications fell out on appeal, that’s what should have been done in this case, in our humble opinion.

So far, we’re looking at about two years of back pay with interest, plus what will no doubt be a substantial (and well-deserved) lawyer fee claim. With the Board down to only one member, who knows when the remand decision will be issued that actually results in a ruling on an appropriate penalty. The back pay will continue to accrue for many months.

Hey, DVA; we love you guys. If you were to ask us for advice (which you haven’t because we charge excessively outrageous fees for our opinions), we’d suggest that you cancel the removal, reinstate Mr. Tartaglia immediately, and forget about waiting for a remand decision from the Board on some lesser penalty. Cut your losses. Get some work out of the guy in exchange for the money you’ll have to pay him anyway. Yes, you got scrogged by the court. But did we give up when the Germans bombed Pearl Harbor? (Warning: link contains language NSFW). Heck no we didn’t. Just put this one on the cases-we-shouldn’t-have-lost list and move on. Soon, you’ll have a new discipline system, and you’ll never have to worry about mitigation again. Wiley@FELTG.com

 

 

 

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